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THE \ ~~ 
UNITED STATES SENATE L000); opp 
AND THE ; 


INTERNATIONAL COURT 


BY 
FRANCES KELLOR 


AUTHOR oF “‘SEcURITY AGAINST WAR’? 
AND 
ANTONIA HATVANY 


COLLABORATOR 





NEW YORK 
THOMAS SELTZER 


1925 


Copyright, 1925, by 
THOMAS SELTZER, Inc. 


All rights reserved 


PRINTED IN THE UNITED STATES OF AMERICA 


AUTHOR’S NOTE 


This volume continues the history of 
the management by the League of Na- 
tions of the settlement of international 
controversies, as related in Security 
Against War, published in October, 1924. 
It indicates the position of the United 
States in relation to the system of pacific 
settlement established under the League 
of Nations, of which organization the 
Permanent Court of International Jus- 
tice forms a part. 


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Fa 
te oa 
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A ae 





CONTENTS 


CHAPTER 
Pe ESIGN OPLTHES COURT (Ame Soh ts a ey hedamnnc. iia, 
TEE ORGANIZATION: OF CTH EXCOURDE, Meth a Gil avidin oe 
LIT UNGMINATION: OF FUDGES Wc iiny canis uy ase etn eee ee 
AN AESLECTION | O81 LUDGES a Ura itauh tet iis uuleisbe. ley iy ol hsb 
VAM ATION AL || ISIDGES 9 Aves rwes SoA Vege Crude: why dels 
iPM IGH TION SACCESS) 1. teat 2 tei: eal eat ney hacn Geb’ 


VII OsLicatory JURISDICTION UNDER THE STATUTE . 

ViLES Jurispicrion /UNDER TREATIES ke ie is 
IX Jurispicrion Over Non-JupicraL Matters. . . 
X Apvisory OPINIONS UNDER THE COVENANT . . 
XI Apvisory OPINIONS IN THE UNITED STATES .. . 


XII Jurispicrion witH Respect To INTERNATIONAL 
PGABORAG diigo tu here, MACUREEE wae a Re MEN QUE COM 


XIII Jurispicrion CoNCERNING TRANSIT AND COMMUNI- 
CATIONS Te occ ae es Aer Se Caches 


XIV JurispicrIoN Over DoMESTIC QUESTIONS. . . . 
XV CoMPETENCE WITH Respect TO WaR.... . 
XVI Laws To BE ADMINISTERED BY THE COURT. .. . 


XVII InTERNATIONAL SANCTIONS IN RELATION TO THE 
COT RT CRA SAL ee Wha Cer erry. Sam Eto saat), 


XVIII Proposats SUBMITTED TO THE SENATE. . .. . 


XIX INTERPRETATION AND EXTENSION OF PENDING PRo- 
POSALS * J es . 7 ° ° ° °° « e . ° J e 


mE UIP CT LISTON Wh ore ee hee a ea ee NG ab te lpg a that tts 


Vv 


104 
126 


vi CONTENTS 


ANNEXES: 
I Summary of Opinions and Judgments: 
II Text of the Statute of the Court: 
III Rules of the Court . 
IV Proposal Submitted by Mr. ftding 
V_ Resolution Introduced by Senator Swanson 


VI Resolution Introduced by Senator Lodge . 
VII Resolution Introduced by Senator Pepper . 


VIII The Court’s Jurisdiction . 


TRDER VE eae ea hee iin enaere 


PAGE 


Verde, 
a 
- 204 
e310 
. 319 
wiaek 
- 334 
1335 
» 347 


SYNOPSIS 


Chapter I. Design of the Court: 1. The Peace Conference at Paris 
authorized the establishment of the Permanent Court of Inter- 
national Justice. 2. Jurisdiction conferred upon the Court by 
the Treaties was the reason for its immediate organization. 
3. The Council appointed an Advisory Committee of Jurists to 
prepare plans. 4. The recommendations of the Committee were 
submitted to the Council of the League. 5. The Council pro- 
posed modifications in the draft Scheme. 6. The Assembly fur- 
ther modified and then adopted the draft Scheme as altered by 
the Council. 7. These changes substantially altered the character 
and functions of the Court as recommended by the Advisory 
Committee of Jurists. 8. The Statute came into being through 
a resolution passed by the Assembly, providing for a Protocol 
of Signature. 9. Signature to the Protocol is limited to members 
of the League and to states mentioned in the Annex to the 
Covenant. 10. This policy of exclusion was abandoned in later 
protocols. 11. No provision is made for withdrawal from the 
Statute. 12. Provisions for denunciation have been made in 
other instruments. 13. Revision of the Statute is nowhere pro- 
vided for, leaving the right, by omission, to the Assembly. 14. Re- 
vision of the Statute by the Assembly may extend the substantive 
competence of the League with respect to its members. 15. 
Revision may be effected by the Assembly through independent 
acts. 16. The Statute contains no provisions for sanctions, leav- 
ing the right, by omission, to the Covenant. 17. The Court was 
intended to be and is the judicial organ of the League. 18. The 
general policies of the Court are defined by the League of Na- 
tions. 19, The basic design of the Court makes no adequate 
provision for the proper functioning of adherent non-members of 
the League. 20. The proposal for the adherence of the United 
States stipulating that the Statute shall not be amended without 
the consent of this government is inadequate. 


Chapter II. Organization of the Court: 21. The Court is organized 
in addition to the Permanent Court of Arbitration and parties 
Vii 


Vill SYNOPSIS 


are at liberty to resort to other tribunals. 22. The latitude 
permitted under the Statute constitutes the Court a co-existing 
tribunal in an international system. 23. Members of the Court 
comprise ordinary judges, deputy judges, and national judges 
for special cases. 24. Certain duties are considered to be in- 
compatible with those of a member of the Court. 25. The 
Court is authorized by the Statute to complete its organization 
in certain particulars. 26. Expenses of the Court are determined 
and paid by the League. 27. Payment of expenses by the 
League entitles the Assembly to a report. 28. Non-members de- 
siring to adhere to the Statute and to pay a share of the expenses 
will do so through the League. 29. The principles of procedure 
are laid down in the Statute. 30. The principles governing the 
judgments of the Court are specified in the Statute. 31. The 
Court is authorized to make rules to carry out the foregoing 
principles. 32. The Statute lays down no principles and contains 
no procedure for advisory jurisdiction. 33. Through its organ- 
ization the Court is attached to the League. 34. Proposals for 
adherence of the United States either acquiesce in the present 
organization or would disrupt the scheme. 


Chapter III. Nomination of Judges: 35. The Court is composed of 
independent judges elected regardless of nationality. 36. Judges 
are nominated by members of the League and States mentioned 
in the Annex to the Covenant. 37. The use of the Hague 
Organization places it in a subordinate capacity in the League 
System. 38. Nominations are set in motion by the League. 
39. The procedure for making nominations is not binding upon 
the nominators. 40. Nominations thus made are not binding 
upon the electors representing the country of the national group. 
41. The machinery for nominations is controlled by the 
League. 42. The League is not dependent upon the Hague 
Organization. 43. The use of the Hague groups for nomina- 
tions is not authorized by the Hague Convention. 44. A con- 
vention negotiated and ratified for one purpose is used for 
other purposes not ratified. 45. Proposals for adherence of the 
United States do not contemplate alteration of the present plan. 


Chapter IV. Election of Judges: 46. Judges are elected concurrently 
by the Council and Assembly. 47. The electors are to bear in 
mind certain qualifications. 48. The method of election is pre- 


SYNOPSIS 1X 


scribed in the Statute. 49. Vacancies are filled by the method 
prescribed for elections. 50. Members of the Court are remov- 
able by their colleagues. 51. Judges thus elected are the repre- 
sentatives of the League. 52. Provisions in the Statute whereby 
judges are elected create a direct legal relation between League 
and Court and between the League and voting states. 53. This 
legal relation creates a practical problem for non-member 
states which the Harding-Hughes proposal undertakes to solve. 
54. Other proposals before the Senate would separate the Court 
from the League. 55. The plan reported by a majority of the 
Senate Committee on Foreign Relations proposes a complete 
separation of the Court from the League. 56. The proposal of 
the Republican Administration is embodied in a_ resolution 
introduced by a Democratic Senator. 57. The proposals before 
the Senate present two extremes. 


Chapter V. National Judges: 58. It is an accepted principle of law 
that no one can be a judge in his own case. 59. The problem 
before the Advisory Committee of Jurists involved the guarantee 
of impartiality. 60. Differences of opinion manifested at The 
Hague in 1907 reappeared in 1920. 61. The Statute maintains 
the principle of national judges. 62. Special provisions apply to 
judges chosen ad hoc. 63. National judges are the representatives 
of the League. 64. Judges appointed ad hoc furnish an exception 
to the rule that judges represent the League. 65. Equality of 
national judges is not maintained in the Chamber of Summary 
Procedure. 66. Equality of national judges is maintained in the 
Special Chambers for labor and for transit. 67. Equality of 
judges is not maintained when the Court renders an advisory 
opinion. 68. The principle of national judges as applied to ad- 
visory opinions favors the great Powers. 69. The adherence of 
the United States should be conditioned upon equal representa- 
tion under all circumstances. 


Chapter VI. Right of Access: 70. By accessibility is meant the use of 
the Court. 71. The Court is directly accessible to any State or 
member of the League. 72. The Court is directly and uncondi- 
tionally accessible to. members of the League as a matter of 
right. 73. Right of unconditional direct access may be lost 
through withdrawal from the League. 74. Only states may 
have direct access as parties. 75. An exception to direct ac- 


x SYNOPSIS 


cess occurs whenever a state is under a mandate, protectorate 
or guardian. 76. States may have direct access on behalf of a 
private person if such a person is one over whom a state claims 
the right of protection. 77. The Court is directly accessible to 
states mentioned in the Annex to the Covenant. 78. States not 
mentioned in the Annex have direct access to the Court under a 
Declaration prescribed by the Council. 79. The Declaration 
may be particular for a case or general for all disputes. 80. 
The Council alone may change the Declaration. 81. The right 
of the Council to make regulations is based on the theory of 
protection of members of the League. 82. States may have 
direct access through treaty provisions. 83. Direct access may 
be had to the Court for the purpose of executing the terms of a 
treaty. 84. Whether states engaged in war may have direct ac- 
cess to the Court has not been determined. 85. Access in liti- 
gious matters may be had through the Council and Assembly. 
86. Access in non-litigious matters may be had by the Council or 
Assembly. 87. Right of access for advisory opinions may bring 
international institutions before the Court. 88. The Court 
is accessible at all times. 89. Disputes as to accessibility of 
the Court are decided by the Court. 90. Proposals for ad- 
herence of the United States contain no reference to right of 
access. 


Chapter VII. Obligatory Jurisdiction under the Statute: o1. The 
jurisdiction of the Court is in principle based upon agree- 
ment between the parties. 92. The Advisory Committee of 
Jurists undertook to broaden the scope of Article 14. 93. 
The opposition of the great Powers defeated this liberal 
interpretation. 94. The substitute proposal of the great Pow- 
ers was opposed by the small Powers and resulted in the 
optional clause. 95. Whatever obligatory jurisdiction the 
Court possesses under its Statute is derived from the optional 
clause. 096. The Court decides when it has jurisdiction in 
legal disputes. 97. The optional clause extends the principle 
of Article 13 of the Covenant to the Court. 98. The optional 
clause may be accepted unconditionally or with reservations. 
99. Rules adopted by the Council for non-member states offer 
an exception to the rule of reciprocity. 100. The optional 
clause has not been ratified by any great Power. 101. The 
measure of jurisdiction conferred by the optional clause has 


SYNOPSIS X1 


been negligible. 102. The impotence of the optional clause is 
indicated by the forcible settlement of disputes. 103. The op- 
tional clause is sufficiently elastic to permit of any reservation 
which states deem necessary. 104. The elasticity of the op- 
tional clause as interpreted by the Assembly-is the subject of a 
difference of opinion. 105. Jurisdiction conferred by the op- 
tional clause is not stable. 106. The Harding-Hughes proposal 
for United States adherence does not recommend acceptance of 
the optional clause. 


Chapter VIII. Jurisdiction under Treaties: 107. Treaties and con- 
ventions in force confer jurisdiction upon the Court. 108. 
Obligatory jurisdiction is conferred by the Versailles Treaty 
in labor disputes. 109. Obligatory jurisdiction is conferred 
by the Versailles Treaty in transit controversies. 110. Ob- 
ligatory jurisdiction is conferred by international conventions 
relating to transit. 111. Obligatory jurisdiction is conferred 
by mandates. 112. Obligatory jurisdiction is conferred by 
conventions resulting from the Peace Treaties. 113. Inter- 
pretation of the Peace Treaties in general was not intended 
to come within the obligatory jurisdiction of the Court. 114. 
Obligatory jurisdiction conferred by the multiplicity of 
treaties lacks stability and uniformity. 115. Optional juris- 
diction is conferred by treaties of conciliation and political 
agreements. 116. Optional jurisdiction is conferred by com- 
mercial treaties. 117. Optional jurisdiction is conferred by 
the Covenant. 118. Optional jurisdiction is conferred by cer- 
tain political conventions, 119. Optional jurisdiction is con- 
ferred by treaties of alliance and security. 120. Jurisdiction 
may be conferred upon the Court through intervention by the 
League in matters of transit. 121. Jurisdiction may be con- 
ferred through intervention by the League in questions of 
minorities. 122. Jurisdiction may be conferred through con- 
ventions negotiated by the League. 123. Direct access to the 
Court appears to be difficult when jurisdiction may be invoked 
through intervention of the League. 124. Jurisdiction con- 
ferred by treaties where members of the League are parties 
is convertible into advisory jurisdiction. 125. It is possible 
to exaggerate the increase in the judicial settlements which 
may be represented by agreements conferring jurisdiction on 
the Court. 126. The United States has indicated its intention 


xil SYNOPSIS 


to confer jurisdiction upon the Court through treaties, when 
the Senate assents to adherence. 


Chapter IX. Jurisdiction Over Non-judicial Matters: 127. The Court 
has jurisdiction over matters other than disputes. 128. Ar- 
ticle 36 extends this jurisdiction to mnon-judicial matters. 
129. The Court may advise on non-judicial matters. 130. The 
Court or its President may appoint arbitrators. 131. The Court 
may make nominations for national offices. 132. The Court has 
established a precedent in undertaking duties of an extra- 
territorial character. 133. Extra-territorial duties performed 
by the Court may establish a policy at variance with national 
practice. 134. The Court appears to be without adequate au- 
thority. 135. Certain principles are established by these in- 
stances. 136. The policy of the United States is set forth in its 
national practice. 137. States adhering to the Statute but not 
associated in joint political endeavors in Europe lack the pro- 
tection afforded to members of the League. 


Chapter X. Advisory Opinions under the Covenant: 138. The Court 
possesses advisory jurisdiction. 139. Absence of mention in the 
Statute is due to the Assembly. 140. Origin of the provision 
is British. 141. The practice followed by the Council under 
Article 14 is a departure from the British rule. 142. Only 
the Council or Assembly may request advisory opinions. 143. 
States and international organizations may obtain opinions 
through the Council or Assembly. 144. Agreements between the 
Council and states have been made to submit matters for opinions. 
145. The scope of the subject matter is unlimited. 146. Consent 
of parties is not necessary for submission of the question. 147. 
Questions may be framed either by parties or the Council. 148. 
Whether the vote of the Council shall be unanimous in taking a 
decision to request an opinion is not determined. 149. The Court 
regards as discretionary its obligation to render opinions. 150. 
The Council regards as mandatory the same obligation. 151. The 
Court has had formulated general conclusions underlying advisory 
practice. 152. With these conclusions the Council is not in 
entire accord. 153. The rules of the Court prescribe no fixed 
procedure. 154. The Court has thus far followed the procedure 
laid down for judgments. 155. Certain of these rules are not 
applicable to advisory opinions. 156. Opinions are not generally 


SYNOPSIS Xili 


regarded as the exercise of a judicial function. 157. Opinions in 
themselves do not settle a dispute for they are incomplete. 158. 
Opinions are not binding. 159. For members of the League opin- 
ions are applicable within the terms of the Covenant. 160. No 
matter submitted for an opinion has been submitted for a judg- 
ment. 161. The rules of the Court prevent secret or confidential 
Opinions. 162. Proposals in the United States indicate a division 
of opinion. 163. The position of the Court in the matter of 
Eastern Carelia does not offer a sufficient guarantee to non- 
members of the League. 164. None of the proposals pending in 
the Senate affect the questions of fundamental concern to the 
United States. 


Chapter XI. Advisory Opinions in the United States: 165. The 
Federal Judiciary does not offer a precedent for the prac- 
tice of advisory opinions in the Court of Justice. 166. 
Nine states have made provisions for advisory opinions. 167. 
The policy adopted by these states establishes a common 
principle. 168. Four states have experimented with advisory 
opinions and rejected them. 169. Two states have adopted ad- 
visory opinions with respect to criminal cases. 170. The prac- 
tice followed in the nine states which have advisory opinions 
is derived from the British practice. 171. Only the governor 
or branches of the legislature may request opinions. 172. Ad- 
visory opinions are delivered by the justices not by the Court. 
173. The practice of advisory opinions is limited. 174. These 
limitations preclude the submission of actual controversies or 
questions involving private rights. 175. State justices strictly 
construe these provisions. 176. It is not mandatory upon the 
justices to grant opinions whenever requested. 177. Advisory 
opinions are not binding upon either the governor or legisla- 
ture. 178. Advisory opinions are not binding upon the Court. 
179. Opinions are reported among regular decisions but not for 
the purpose of using them as precedents. 180. The proceedings 
are informal and non-judicial. 181. The rendering of advisory 
opinions is a non-judicial function. 182. Advisory opinions as 
practiced in the United States do not justify adherence to the 
Court on the basis of precedent and analogy. 


Chapter XII. Jurisdiction With Respect to International Labor: 
183. The Treaty of Versailles provides an organization for 
improvement of labor conditions, 184. The Treaty provides 


XiV 


Chapter 


Chapter 


SYNOPSIS 


for the calling of General Labor Conferences. 185. The 
duty of member states is to secure adoption of pro- 
posals agreed to by General Conferences. 186. The Court 
is authorized to indicate sanctions in connection with disputes 
arising under Article 405 of the Treaty of Versailles. 187. 
For the purpose of hearing labor disputes a special chamber 
is created under the Court Statute. 188. Matters arising un- 
der the labor provisions have been submitted for interpreta- 
tion. 180. Direct access for purposes of a judgment may 
become indirect access for purposes of advice. 190. Injunc- 
tions against free discussion and research may be sought 
through advisory opinions. 191. Intervention by the Council 
renders useless the Special Chamber for labor cases. 192. The 
question whether adherence to the Court Statute would preju- 
dice the position of American labor is debatable. 


XIII. Jurisdiction Concerning Transit and Communica- 
tions: 193. The Treaty of Versailles confers a limited 
amount of jurisdiction upon the Court. 1094. Jurisdiction 
with respect to international rivers is conferred upon the 
Court. 195. Jurisdiction with respect to the general inter- 
pretation of the transit provisions is not conferred upon 
the Court. 106. Framing of final provisions on transit was 
part of a general task laid upon the League. 197. The first 
Assembly undertook to summon a general Conference on 
freedom of communication and transit. 198. This Conference 
extended the jurisdiction of the Court. 1099. The competence 
thus conferred constitutes the Court a tribunal of appeal with 
optional jurisdiction. 200. Recourse is obligatory in one in- 
stance. 201. The provisions authorized by the League have 
been applied in one instance. 202. The Court has obligatory 
jurisdiction under certain transit clauses of the Treaty. 203. 
One appeal has been made under these clauses 204. The 
Court possesses a two-fold jurisdiction in transit matters. 
205. Adoption of special provisions in the Statute is due to a 
British proposal. 206. Article 27 of the Statute provides for 
a special chamber. 207. This special chamber appears to 
duplicate the work of the League. 


XIV. Jurisdiction over Domestic Questions: 208. Deter- 
mination of what constitutes a domestic question is ordinarily 


SYNOPSIS XV 


the right of states. 209. Members of the League have as- 
signed to the Council determination of this right. 210. The 
Covenant undertakes to confer a similar right for non- 
members of the League. 211. Any domestic question may 
be submitted to the Court for an advisory opinion. 212. 
Principles which will determine whether a matter is domestic 
or international have not been ascertained. 213. The Geneva 
Protocol undertook to change the existing rule under the 
Covenant. 214. The precise meaning of the proposal has been 
the subject of varying interpretations. 215. Provisions of the 
Geneva Protocol were intended to apply to non-member states. 
216. The position of a state adhering to the Statute but re- 
maining aloof from the political organization which determines 
the policies of the Court calls for additional protection of the 
United States. 


Chapter XV. Competence with Respect to War: 217. The general 
prevention of war is vested in the League of Nations by vir- 
tue of the Covenant and the partial prevention of war is vested 
in treaties of mutual guarantee. 218. The general authorization 
to deal with threats of war is granted to the League under the 
Covenant. 219. Sixteen disputes have been called to the at- 
tention of the League under Article 11. 220. Disputes involv- 
ing threats of war have not been submitted to the Council 
through invoking the powers of the Council under Article 11. 
221. In no instance involving a threat of war or general peace 
has the Court dealt with the merits of a case on the 
basis of law and justice. 222. In certain instances disputes 
involving threats of war which a party desired to submit to 
the Court for an opinion have been withheld by the Council. 
223. Matters involving peace as submitted under Article II, 
establish the rule of precedence for the Conference of Ambas- 
sadors. 224. Matters involving peace as submitted under 
Article 11, establish the rule that the advisory competence of 
the Court is not in effect limited to the Council or Assembly. 
225. The general authorization to deal with threats of rupture 
between members of the League is granted to the League. 226. 
No matter in which a rupture between states was threatened 
has been referred to the Court. 227. A general obligation te 
submit disputes to arbitration before resort to war has been 
entered into by members of the League. 228. Four disputes 


XVI 


SYNOPSIS 


have been submitted to the Council under Article I5 one of 
which has been the subject of an advisory opinion by the 
Court. 229. The general authorization to deal with disputes be- 
tween members and non-members of the League or between non- 
members of the League is granted to the League under the 
Covenant. 230. The general authority granted to the League 
under the Covenant to settle disputes leaves little opportunity for 
the Court to apply judicial decision to the prevention of war. 
231. The general authorization to the League to prevent war un- 
der the Covenant is modified by treaties of security applicable 
independently of the Covenant. 232. The general authorization 
to the League to prevent war under the Covenant is modified by 
regional treaties of security and arbitration negotiated at Lo- 
carno which include commissions of conciliation and the Court. 
233. The general authorization of the League to prevent war 
under the Covenant is modified by the Locarno Treaty of Mu- 
tual Guarantee. 234. Treaties of mutual security leave little op- 
portunity for the Court to apply judicial decisions. 235. The 
system established under the Covenant and regional agreements 
authorizes resort to war to preserve the status quo. 236. The 
European policy of authorized warfare to preserve the status 
quo is not in consonance with the policy of the United States. 
237. The authorization of war to settle international disputes 
as the post-war European policy led to the initiation of an 
outlawry of war movement in the United States. 238. The 
practice of war since 1919 in the settlement of international 
disputes has developed the idea of outlawry of war into a 
national movement. 239. The principles underlying the move- 
ment have been defined. 240. The growth of public opinion 
in the United States turned the attention of the League in 
this direction. 241. A coalition agreement has been entered 
into for the purpose of uniting the peace forces in the United 
States. 242. The movement to outlaw war is moving forward 
in three sections. 243. The proposals submitted to the Senate 
do not increase the powers of the Court to prevent war. 


Chapter XVI. Laws to Be Administered by the Court: 244. It 


must not be possible for the Court to abstain from giving a 
decision. 245. The parties to a convention may establish the 
rules which the Court will apply. 246. International custom 
is recognized as a source of international law. 247. The 


Chapter 


SYNOPSIS XVii 


general principles of law recognized by civilized nations 
shall be applied by the Court. 248. Judicial decisions and 
teachings of the most highly qualified publicists of the various 
nations are established as a subsidiary means for the deter- 
mination of rules of law. 249. Article 59 constitutes an ex- 
ception to the foregoing rule. 250. Article 59 is not applicable 
to advisory opinions. 251. The Court may decide a case ex 
aequo et bono upon request of the parties. 252. The rule of 
ex aequo et bono does not apply to advisory opinions. 253. 
The inadequacy of international law constitutes an obstacle to 
the extension of obligatory jurisdiction. 254. The Peace Trea- 
ties disregarded generally accepted rules of international law. 
255. The Commission on the League of Nations made no 
provision in the Covenant for the development and application 
of international law. 256. The Hague Conference of 1907 
made provision for the calling of a Third Hague Conference. 
257. For these general reasons the Advisory Committee of 
Jurists proposed a Resolution for the codification of interna- 
tional law. 258. The League of Nations rejected the recom- 
mendation. 259. A plan for the progressive codification of 
international law was adopted by the Assembly four years 
later. 260. The co-operation with organizations devoted to 
the study of international law was authorized by the Assembly. 
261. The plan to outlaw war proposes a codification of a dif- 
ferent order. 262. The rejection of the proposal to codify 
law, and the failure of the Statute to provide for its develop- 
ment have given rise to a difference of opinion concerning 
the adherence of the United States. 


XVII. International Sanctions in Relation to the Court: 
263. The Statute makes no provision for sanctions. 264. 
The general sanctions for the decisions of the Court are 
in the Covenant. 265. Sanctions for judicial decisions may 
be devised by the Council. 266. The general rule under 
Article 13 may be given a wide application through exist- 
ing treaties. 267. Judgments of the Court may be enforced 
under the Covenant by economic and military sanctions. 268. 
These economic and military sanctions are applicable by mem- 
bers of the League. 269. Under what conditions, by whom 
and when general economic and military sanctions will be- 
come applicable has not been determined. 270. The essential 


XViil 


SYNOPSIS 


principle of general sanctions under the Covenant is that the 
enforcement of a judicial decision is conditioned upon non- 
execution being a violation of the Covenant. 271. Economic 
and military sanctions are applicable by members of the 
League under Peace Treaties.. 272. Regional agreements for 
the prevention of war afford sanctions enforceable by the 
guarantors of the agreement. 273. Economic and military 
sanctions are applicable to non-members only to the extent of 
their acceptance of the instrument containing such sanctions. 
274. Economic sanctions are applicable by members of the In- 
ternational Labor Organization. 275. Economic and military 
sanctions are applicable to advisory opinions under certain 
circumstances. 276. The absence of sequence between the 
definite legal character of the decisions of the Court and the 
indefinite political character of sanctions detracts from the 
judicial character of the entire proceedings. 277. The United 
States is not amenable to the’ sanctions contained in the 
Covenant. 278. No proposal before the Senate contains any 
reservation concerning sanctions, 


Chapter XVIII. Proposals Submitted to the Senate: 279. When 


the Senate meets on December 7th, it will not have before 
it any proposal without reservations. 280. The Harding- 
Hughes plan favors affiliation on five conditions. 281. Mr. 
Harding’s supplemental proposals are but partially before 
the Senate. 282. President Coolidge has accepted the 
Harding-Hughes plan without the later recommendations 
made by Mr. Harding. 283. A separatist proposal was sub- 
mitted to the Senate by Mr. Lodge. 284. A Republican 
majority proposal was submitted to the Senate by Mr. 
Pepper. 285. The Senate has scheduled the opening of the 
debate on the Court for December 17th. 286. The proposals 
to separate the Court from the League are not acceptable to 
members of the League, on grounds of policy. 287. The 
proposal to separate the Court from the League is imprac- 
tical upon technical grounds. 288. The proposal to affiliate 
with the Court under the Harding-Hughes conditions does 
not adequately protect the interests of the United States. 
289. Policies fixed by the Court indicate that affiliation with 
the Court is for practical purposes affiliation with the 
League. 


SYNOPSIS xix 


Chapter XIX. Interpretation and Extension of Pending Proposals: 
290. The general statement that adherence shall not involve 
any legal relation on the part of the United States to the 
League of Nations or the assumption of any obligation under 
the Covenant requires interpretation concerning (1) general 
obligations; (2) sanctions; (3) withdrawal; (4) Monroe 
Doctrine; (5) domestic questions. 291. The condition that the 
United States shall participate in the election of judges calls 
for a full understanding of the method of participation. 292. 
The proposal that the United States pay a fair share of the 
expenses of the Court requires interpretation to assure pro- 
tection to the interests of the United States. 293. The condi- 
tion that the Statute shall not be amended without the consent 
of the United States does not go far enough. 294. A restate- 
ment of the policy of the United States on compulsory 
arbitration will protect the United States with respect to the 
optional clause in the Statute. 295. The principle of judicial 
decision as a method of settling international disputes is not 
specifically advanced in the Harding-Hughes proposal. 296. 
The development of international law through the jurisprud- 
dence of the Court is not specifically furthered in the Harding- 
Hughes plan. 297. The abolition of war is not recognized 
in the Harding-Hughes proposal. 298. The adherence of the 
United States carries with it the moral obligation to submit 
disputes to the Court. 299. These interpretations and addi- 
tional proposals for conditions of adherence grant increased 
protection to the United States against the liability of foreign 
entanglements. 300. These conditions and understandings may 
form the basis of a new resolution of adherence. 

Chapter XX. Conclusion: To fulfill its pledge to adhere to the Court 
Statute, the Republican Party should not violate its pledge to 
assume no obligations under the Covenant. Both are valid 
promises to the American people. The United States should, 
therefore, affiliate with the judicial functions of the Permanent 
Court of International Justice, but not with the political func- 
tions of the League of Nations. 


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CHAPTER | 
DESIGN OF THE COURT 


1. The Peace Conference at Paris authorized the estab- 
lishment of the Permanent Court of International Justice: 
This authority is contained in Article 14 of the Covenant of 
the League, constituting Part 1 of the Treaty of Versailles.’ 
Article 14 of the Covenant empowers the Council of the League 
of Nations to formulate plans for the establishment of the 
Court and to submit these plans to the members of the League 
for adoption. This Article lays down two fundamental prin- 
ciples for the guidance of the Council: (1) The Court shall 
be competent to hear and determine disputes of an interna- 
tional character which the parties submit to it; and (2) the 
Court may give an advisory opinion upon any dispute or ques- 
tion referred to it by the Council or Assembly.” This legal 
origin of the Court is to be distinguished from the alleged 
moral and social origins of the Court which rest upon contra- 


1 The Covenant also constitutes Part I of the Treaties of St. Germain, 
Neuilly and Trianon, subsequently concluded. The Court is therefore 
authorized by the series of treaties negotiated by the victorious powers, 
the Treaty of Lausanne being the only exception. 


2 Text of Article 14 follows: 

The Council shall formulate and submit to the Members of the 
League for adoption plans for the establishment of a Permanent 
Court of International Justice. The Court shall be competent to hear 
and determine any dispute of an international character which the 
parties thereto submit to it. The Court may also give an advisory 
opinion upon any dispute or question referred to it by the Council 
or by the Assembly. 

I 


2 THE SENATE AND THE COURT 


dictory or insufficient data and are, therefore, rather matters 
for speculation. 


2. The jurisdiction conferred upon the proposed Court 
by the Peace Treaties was. the reason for its immediate 
organization: The Treaty of Versailles came into force on 
January toth, 1920. It contained provisions wherein the 
“Jurisdiction instituted by the League of Nations” is author- 
ized to adjudicate certain disputes.* Therefore, it appeared ur- 
gent that plans be undertaken for the establishment of the Court. 
At the second meeting of the Council of the League, in Feb- 
ruary, 1920, a report was presented by M. Bourgeois (France), 
proposing that a committee of legal experts be appointed to 
prepare a draft Scheme for the organization of the Court.* 


3. The Council appointed an Advisory Committee of 
Jurists to prepare plans:*® Its members acted in a private 
capacity and their recommendations did not necessarily bind 
their governments. In the communication inviting the mem- 


3 Articles 336, 337 and 386 of the Treaty of Versailles offer illus- 
trations. 


4In making his report, M. Bourgeois pointed out that in order to 
give full effect to the stipulations contained in the Treaty and in order 
to curtail temporary measures which were considered to be necessary, it 
was essential that consideration be given without delay to the formation 
of a court. 


5 This Committee, as finally selected, included the following: M. Ad- 
atci (Japan), M. Raphael Altamira (Spain), M. Clovis Bevilaqua, 
replaced by M. Fernandez (Brazil), Baron Descamps (Belgium), 
M. Francis Hagerup (Norway), M. Albert de Lapradelle (France), 
Dr. Loder (Netherlands), Lord Phillimore (Great Britain), M. Arturo 
Ricci-Busatti (Italy), and Mr. Elihu Root (United States). Discussion 
concerning ratification of the Treaty of Versailles was taking place in 
the United States Senate at this time; nevertheless, Mr. Root found it 
possible to accept and was accompanied by Dr. James Brown Scott as 
legal adviser. 


DESIGN OF THE COURT 2 


bers to serve, the Secretary-General of the League pointed out 
that they were to prepare plans for a Court which was to be 
“a most essential part of the organization of the League of 
Nations.” ® In accepting this invitation, the Committee as- 
sumed the obligation of creating a court in accordance with 
these instructions. On the occasion of the first meeting of the 
Committee at the Hague on June 16th, 1920, the solidarity 
between the League of Nations and the proposed Court was 
emphasized. M. Bourgeois described the two institutions as 
complementary to one another.’ M. de Lapradelle (France), 
rapporteur for the Committee, indicated a similar understand- 
ing when he stated: “The new court, being the judicial organ 
of the League of Nations, can only be created within this 
League.” ® Mr. Root acted in accordance with these views.° 


6P. C. of I. J. Doc. Concerning Action of Council, p. 12. 
7M. Bourgeois’ words follow: 

May I be permitted to say why the Council of the League of Na- 
tions consider the two institutions as complementary the one to the 
other, as of necessity being organized at the same time and as being 
unable, as long as they wish to preserve their existence, to do without 
each other? * * * 

Finally, there is a last point of view, which we must take in order 
to envisage the necessary relations between the League of Nations 
and the International Court of Justice, and the close solidarity 
which exists and which will always exist to an increasing degree 
between their two actions. * * * P. C. I. J. Pub., Proceedings of the 
Committee, pp. 9-10. 

8 Records of the First Assembly, Committees, Vol. L., p. 420. 
9 On June 18th, 1920, Mr. Root said: 

Now, is it possible that the Council and the Assembly will accept 
and put into force the plan of the Court if the plan ignores their 
existence? How are courts constituted originally? However perfect 
may be the distinction between judicial and political powers, the 
personnel of the judiciary must necessarily have its origin in the po- 
litical power. 

And, again, on June 22nd, 1920: 
We must first consider that this new court must be provided for as 


4 THE SENATE AND THE COURT 


It is evident that the members of the Committee interpreted 
their task to be that of completing the system of the League 
of Nations according to the terms laid down in Article 14 of 
the Covenant. 


4. The recommendations of the Committee were sub- 
mitted to the Council of the League: The Committee com- 
pleted its work on July 24th, 1920. Its recommendations 
comprised a draft Scheme for the creation of a Court and 
three resolutions. The recommendations were accompanied by 
a general report. The draft Scheme consisted of sixty-two 
articles, comprising three parts: (1) Organization; (2) com- 
petence; and (3) procedure. The Resolutions provided as 
follows: (1) For an international conference in continuation 
of the First and Second Hague Conferences to meet at stated 
intervals for the advancement of international law. (2) For 
a High Court of International Justice to be created for the 
trial of offenses against public order and against the law of 
nations. (3) For the re-installation of the Academy of In- 
ternational Law at the Hague Peace Palace.° The Court 
proposed in the draft Scheme was authorized to hear and deter- 
mine only suits between states; it was given compulsory juris- 
diction within a limited and specifically defined class of cases; 
and it was authorized to grant advisory opinions to the Council 
or the Assembly according to a specified procedure. The draft 
Scheme was presented on August 3rd, 1920, to the Secretary- 
General of the League, together with the resolutions and a 
report of the Secretary-General of the Committee, M. de 


a part of the system of which the League of Nations is part. We 

cannot accept the invitation of the Council and recommend a plan 

for a court which is not going to form a part of that system. (Am. 

J. Int. Law; January, 1921; pp. 4 and 11.) 

10 These three resolutions were not considered favorably by the First 
Assembly. 


DESIGN OF THE COURT if 


Lapradelle. The Committee could not urge the Council to 
accept either the draft Scheme or the resolutions without de- 
tracting from its own dignity but stated that it held itself in 
readiness to be of further service. The Secretary-General sent 
copies of the draft Scheme to members of the League, re- 
questing their suggestions. The replies, together with the 
draft Scheme, were referred to M. Bourgeois who was re- 
quested to make a report to the Council. 


5. The Council proposed modifications in the draft 
Scheme: In his report, M. Bourgeois recommended certain 
modifications. These modifications limited the matters in 
which the Court had compulsory jurisdiction to disputes, “the 
settlement of which is by treaties in force entrusted to it,” 
and they introduced the principle that “the decision of the 
Court has no binding force except between the parties and in 
respect of that particular case.” +4 These modifications elim- 
inated compulsory jurisdiction, as recommended by the Ad- 
visory Committee of Jurists, and made necessary a restricted 
application of the decisions of the Court, thereby substituting 
two arbitral features for its judicial character. 


6. The Assembly further modified and then adopted the 
draft Scheme as altered by the Council: The original and 
modified drafts, together with the reports and suggestions 
concerning them, were submitted to the First Assembly. The 
Third Committee of the Assembly, composed of thirty-seven 
members under the chairmanship of M. Bourgeois, was en- 
trusted with the preparation of a final draft. A sub-com- 
mittee, composed of five of the jurists who sat as members 
of the Advisory Committee of Jurists and five representatives 
of states, was then appointed. It presented a further modified 


11 For original and modified draft Scheme see Records of the First 
Assembly, Committees, Vol. I., pp. 412-495. 


6 THE SENATE AND THE COURT 


draft to the Third Committee which, having made some final 
modifications, submitted a draft Statute to the plenary As- 
sembly. This draft was adopted unanimously on December 
13th, 1920.*? 


7. These changes substantially altered the character and 
functions of the Court as recommended by the Advisory 
Committee of Jurists: These modifications extended the 
jurisdiction of the Court beyond hearing and determining suits 
between states to include “all cases which the parties refer 
to it and all matters specially provided for in treaties and 
conventions in force.’ They substituted for the compulsory 
jurisdiction of the first draft an optional clause by which any 
state, signatory to the Statute, may recognize the jurisdiction 
of the Court as compulsory, if it so desires ; and they eliminated 
all reference to advisory opinions, thus leaving Article 14 of 
the Covenant as the sole authorization for the Court to deliver 
such opinions and without definite rules of procedure.” 


8. The Statute came into being through a resolution 
passed by the Assembly providing for a Protocol of Sig- 
nature: The question of the manner of final acceptance of 
the Statute appears to have been left to the Third Committee 
of the Assembly as neither Article 14 of the Covenant nor the 
draft Scheme contains any provision for its adoption. The 
unanimous vote of the Assembly establishing the Court would 
obviously not have made possible the adherence of states men- 
tioned in the Annex to the Covenant but not represented at the 


12 For text of Statute, see Annex II. 

13 The draft Statute, drawn up by the Advisory Committee of Jurists, 
provided for the election of judges through the Council and Assembly 
of the League, and also for the financing of the Court through the 
League. These provisions were not the subject of debate in the Council 
or Assembly; and were left practically unchanged from the first to 
the last draft. 


DESIGN OF THE COURT * 


First Assembly and thus unable to participate in the vote. This 
question was solved in the following manner: The Assembly 
unanimously adopted the draft Statute and in the same resolu- 
tion authorized the Council to submit the Statute to members 
of the League “for adoption in the form of a Protocol duly 
ratified.” The Court was to come into existence when the 
Protocol of Signature was ratified by a majority of the mem- 
bers of the League; and the Protocol of Signature was to 
remain open for further adherents within the terms specified. 
The resolution adopted by the Assembly was as indispensable 
to the creation of the Court as were ratifications by states. 


g. Signature to the Protocol is limited to members of the 
League and to states mentioned in the Annex to the Cove- 
nant: The Protocol declares the acceptance of the Statute 
by members of the League and it provides that the ratifica- 
tion by such members shall be sent to the Secretary-General 


14 The text of the Resolution follows: 

1. The Assembly unanimously declares its approval of the draft 
Statute of the Permanent Court of International Justice—as amended 
by the Assembly—which was prepared by the Council under Article 
14 of the Covenant and submitted to the Assembly for its approval. 

2. In view of the special wording of Article 14, the Statute of the 
Court shall be submitted within the shortest possible time to the 
members of the League of Nations for adoption in the form of a 
Protocol duly ratified and declaring their recognition of this Statute. 
It shall be the duty of the Council to submit the Statute to the 
members. : 

3. As soon as this Protocol has been ratified by the majority of the 
members of the League, the Statute of the Court shall come inta 
force, and the Court shall be called upon to sit in conformity with the 
said Statute in all disputes between the members or states which 
have ratified as well as between the other states, to which the Court 
is open under Article 35, paragraph 2, of the said Statute. 

4. The said Protocol shall likewise remain open for signature by 
the states mentioned in the Annex to the Covenant. (Records of the 
First Assembly, p. 500.) 


8 THE SENATE AND THE COURT 


of the League to be deposited in the archives of the Secreta- 
riat15 It remains open specifically for the signatures of mem- 
bers of the League and of states mentioned in the Annex to 
the Covenant of the League.t* No non-member state, not thus 
mentioned, may affiliate with the Court; and it is, therefore, 
erroneous to infer that all nations may affiliate with the Court, 


15 The text of the Protocol of Signature follows: 

The members of the League of Nations, through the undersigned, 
duly authorized, declare their acceptance of the adjoined Statute of 
the Permanent Court of International Justice, which was approved 
by a unanimous vote of the Assembly of the League on the 13th De- 
cember, 1920, at Geneva. 

Consequently, they hereby declare that they accept the jurisdiction 
of the Court in accordance with the terms and subject to the condi- 
tions of the above-mentioned Statute. 

The present Protocol, which has been drawn up in accordance with 
the decision taken by the Assembly of the League of Nations on the 
13th December, 1920, is subject to ratification. Each Power shall 
send its ratification to the Secretary-General of the League of Na- 
tions; the latter shall take the necessary steps to notify such ratifica- 
tion to the other signatory Powers. The ratification shall be deposited 
in the archives of the Secretariat of the League of Nations. 

The said Protocol shall remain open for signature by the members 
of the League of Nations and by the states mentioned in the Annex 
to the Covenant of the League. 

The Statute of the Court shall come into force as provided in the 
above-mentioned decision. 

Executed at Geneva, in a single copy, the French and English texts 
of which shall both be authentic. 

December 16th, 1920. 

16 As of January ist, 1925, the following thirty-six members of 
the League had ratified this Protocol of Signature: Albania, Australia, 
Austria, Belgium, Brazil, Bulgaria, Canada, China, Cuba, Czechoslo- 
vakia, Denmark, Esthonia, Finland, France, Great Britain, Greece, 
Haiti, India, Italy, Japan, Latvia, Lithuania, Netherlands, New 
Zealand, Norway, Poland, Portugal, Roumania, Kingdom of the 
Serbs, Croats and Slovenes, Siam, South Africa, Spain, Sweden, Swit- 
zerland, Uruguay, Venezuela. 


‘DESIGN OF THE COURT 9 


for there is no way by which Russia, Germany, Turkey or 
Mexico may adhere until the Protocol of Signature is amended 
or until they become members of the League. 


10. This policy of exclusion was abandoned in later instru- 
ments: This draft Treaty of Mutual Assistance, submitted 
to the Assembly in 1923, would have permitted non-member 
states to adhere to that treaty, subject to the consent of two- 
thirds of the signatories with regard to whom it had come into 
force. The executive resolution of the Fifth Assembly, ac- 
companying the Protocol for the Pacific Settlement of Inter- 
national Disputes, provided that this instrument was to be 
held open for signature by all states. Both of these instru- 
ments, had they been duly ratified, would have enlarged the 
jurisdiction of the Court. 


11. No provision is made for withdrawal from the Stat- 
ute: In the absence of any such provision, a state desiring 
to withdraw its adherence is confronted with the following 
difficulties: (1) Members of the League, mentioned in the 
Annex to the Covenant and signatories to the Statute, do not 
withdraw from the Court even by withdrawing from the 
League, since they have derived their right to sign the Pro- 
tocol of Signature by reason of being mentioned in the An- 
nex to the Covenant and not by virtue of membership in the 
League. (2) With respect to members of the League signa- 
tories to the Statute, which are not mentioned in the Annex 
to the Covenant,’’ it is a question whether membership in the 
League constitutes a condition precedent or whether, should 
they withdraw from the League, their adherence to the Pro- 
tocol of Signature would become ineffective. (3) With re- 
spect to states mentioned in the Annex, but not members of 


17 These states include Austria, Hungary, Bulgaria, Finland, Lithu- 
ania, Latvia, Esthonia and Albania. 


10 THE SENATE AND THE COURT 


the League, it would appear that they will have no way of 
withdrawal except to reserve the right under specified condi- 
tions at the time of adherence; or exercise an arbitrary author- 
ity of denunciation.1* Members of the League which have not 
signed nor ratified the Protocol of Signature may wish to ex- 
ercise a similar right in the absence of any prohibition against 
reservations.’® 


12. Provisions for denunciation have been made in other 
instruments: The Treaty of Mutual Assistance provided 
after a period of fifteen years, denunciation might be made by 
notification to the Secretary-General of the League. The de- 
nunciation of the Protocol for the Pacific Settlement of In- 
ternational Disputes is not provided for as specifically but 
the Council is empowered to declare the Protocol null and void 
on grounds to be laid down by the International Conference 
for the Reduction of Armaments. The Covenant itself pro- 
vides for withdrawal by members from the League under 
paragraph 3 of Article 1.2° The optional clause of the Statute 
permits of a reservation as to time which is equivalent to the 
right of denunciation at stated intervals. The existence of 
such provisions in other treaties raises the question whether 
the intention was to make adherence perpetual to the Protocol 
establishing the Court. 


18 Such states are the United States, Ecuador and The Hedjaz. 

19 Such states are: The Argentine Republic, Guatemala, Honduras, 
Nicaragua and Peru, which have not signed the Protocol of Signature; 
and Bolivia, Chili, Colombia, Costa Rica, Liberia, Luxemburg, Pan- 
ama, Paraguay, Persia, Hungary and Salvador, which have signed but 
not ratified. 

20 Paragraph 3 of Article 1 provides: 

Any Member of the League may, after two years’ notice of its 
intention so to do, withdraw from the League, provided that all its 
international obligations and all its obligations under this Covenant 
shall have been fulfilled at the time of its withdrawal. 


DESIGN OF THE COURT 11 


13. The revision of the Statute is nowhere provided for, 
leaving the right, by omission, to the Assembly: The 
Statute contains no provision for its own amendment ;*! and in 
the absence of any such provision, the rule is that the right 
of revision remains in the organization which created the 
instrument. Presumably, therefore, the procedure used for 
the adoption of the Statute will be followed in its amendment, 
namely: ??_ (1) Submission of the proposed amendment to the 
Council; (2) recommendations by the Council to the As- 
sembly; (3) reference by the Assembly to a committee; (4) 
adoption of the report of the committee by resolution of the 


21M. Bourgeois, on the occasion of presenting the Report of the 
Third Committee to the Assembly, said: 

It will be for the League to establish the Court and to draft its 
Statute. But from that moment, and so long as the League of Na- 
tions has not by its sovereign power altered those rules, the Court is 
independent. (Records of the First Assembly, p. 437.) 

This is confirmed by a further report, adopted by the Council on 
October 27th, 1920: 

The powers of the Council and of the Assembly are such that they 
extend to the transformation of the composition of the Court itself, 
but when they have fully exercised their rights by establishing in- 
ternational jurisdiction under conditions determined by them it is 
important for them to allow the latter independence in its judg- 
ments. (Records of the First Assembly, Committees, Vol. I; p. 
476.) 


22 The Swiss scheme for a court statute provided in Article 64 for 
revision to be made either by a majority of a Council of, Mediation or 
by a third of the states or by a group of states representing a third of 
the populations of states of the League. The proposal for revision was 
to be notified to all the states. The adoption of an amendment would 
have required a double majority of states and populations in a confer- 
ence of states sitting in two successive sessions, taking place at least two 
years apart. Article 65 provided that a revision of the statute was not 
to result in the extension of the substantive competence of the Council. 
(Doc. Presented to the Committee Relating to Existing Plans for the 
Establishment of a Permanent Court of International Justice, p. 276.) 


12 THE SENATE AND THE COURT 


Assembly; and (5) submission by the Council of the reso- 
lution to member states for ratification. It is nowhere pro- 
vided under what conditions an amendment, proposed in this 
manner, would become effective and whether some signatories 
might ratify it and be bound by it while other states did not; 
or whether a ratification would become effective before all 
signatories had ratified. It is, therefore, apparent that a 
non-member of the League adhering to the Statute, and desir- 
ing to take part in guiding the policy of the Court through 
amendment of the Statute must do so through the Council 
and Assembly until the latter has made some other provision. 
Proposals made in the Fifth Assembly confirm its authority 
to revise the Statute. That Assembly passed a resolution 
requesting the First Committee to examine within what limits 
the terms of Article 36, paragraph 2, of the Statute might 
be rendered more precise; and the Sixth Assembly considered 
but deferred to a future session a Danish proposal to attach 
conciliation commissions to the Court. 


14. Revision of the Statute by the Assembly may extend 
the substantive competence of the League with respect to 
its members: An illustration is afforded by the Geneva Pro- 
tocol adopted by the Fifth Assembly. The Protocol provided 
that the Court should give advisory opinions when requested 
to do so by a committee on arbitration, appointed by the 
Council, whenever one party alleged the matter to be of a 
domestic nature. Should the Court be of the opinion that 
the question was domestic, the committee on arbitration was 
bound to accept the opinion and make no recommendation; 
but this opinion would not preclude the Council from taking 
the matter under consideration and making a recommendation 
under Article 11 of the Covenant. At present, the Council 
may not make a recommendation on domestic questions un- 
der the Covenant. This provision, as contained in Articles 4 


DESIGN OF THE COURT 13 


and 10 of the Protocol would, in effect, have constituted a 
revision of the Statute, for neither Article 14 of the Cove- 
nant nor the Statute requires the Court to grant to the 
Council an opinion specifically intended for a committee on 
arbitration; and such revision would, in effect, have extended 
the power of recommendation by the Council to domestic 
questions.** 


15. Revision may be effected by the Assembly through 
independent acts: The Geneva Protocol, adopted by the As- 
sembly in 1924, demonstrated that such revision might be 
accomplished in two ways. (1) By interpreting the provi- 
sions of the Statute through another instrument as, for instance, 
the liberalizing of the optional clause through extension of the 
range of reservations; and (2) by enactment of provisions in 
new agreements, adopted by the Assembly, which lay new duties 
upon the Court. Of this nature was the extension of advisory 
opinions to committees on arbitration appointed by the Council. 
States, not parties to these interpretative acts or revisory instru- 
ments, would not be bound by their terms; but the Court would 
be bound by the resolutions of the Assembly, when ratified by 
the requisite number of states, for they would have the same 
legal status as the present Statute. 


16. The Statute contains no provisions for sanctions, 
leaving the right, by omission, to the Covenant: No 
reference is made throughout the Statute to the execution of 
a judgment, whether through good faith or otherwise; except 
that in an application for revision the Court may require previ- 
ous compliance before granting the request. Such sanctions as 
exist for judgments are, therefore, to be found in the Covenant 
for members of the League or in the Peace Treaties for signa- 


23 See Chapter XIV on Jurisdiction over Domestic Questions for 
more complete exposition. 


14 THE SENATE AND THE COURT 


tories thereto. Sanctions for advisory opinions rest with the 


body requesting such opinions, as they form part of its award 
or decision. 


17. The Court was intended to be and is constituted as 
the judicial organ of the League of Nations: This relation- 
ship is definitely and legally established in the design of the 
Court: (1) All three organs of the League originated from 
the same source. (2) The constitution of the League author- 
izes the establishment of all three of its branches. (3) The in- 
structions given to the Advisory Committee of Jurists were to 
the effect that the Court was to complete the organization of 
the League. (4) The recommendations made by that Com- 
mittee carried out these instructions. (5) The Statute is 
derived from Article 14 of the Covenant and defines its general 
provisions.2* (6) The Statute was made possible by the legis- 
lative act of the Assembly, namely the Protocol of Signature. 
(7) The submission of this Protocol to states for ratification fol- 
lowed the usual procedure adopted by the League. (8) Sig- 
natories to the Protocol are limited to members of the 
League and to states mentioned in the Annex to the Covenant. 
(9) The advisory relation of the Court to the League is 
authorized in Article 14 of the Covenant. (10) Sanctions for 
opinions and decisions of the Court are vested in the League. 
(11) Provision is made for the withdrawal of members from 
the League but not from the Protocol of Signature. (12) Re- 
vision of the Statute remains the right of the League. (13) 
The Statute is, in effect, the judiciary act by which the 
Court is created and its powers and duties defined; its future 
policies being left to be developed by the League. 


24An analogous legislative act occurred in the Protocol for the 
Pacific Settlement of International Disputes, adopted by the Fifth As- 
sembly. It undertook to define more precisely Articles 15 and 16 of 
the Covenant under a separate Protocol in much the same manner as 
the Court Statute defines Article 14. 


DESIGN OF THE COURT 15 


18. The general policies of the Court are defined by the 
League of Nations: This control is accomplished: (1) 
Through exclusion of all non-members of the League, except 
those mentioned in the Annex to the Covenant of which class 
of states the United States is the most important; (2) through 
the absence of any stated grounds for withdrawal; (3) through 
the reservation of the revision of the Statute to the Assembly ; 
(4) through the exercise of sanctions under the Covenant ; and 
(5) through the advisory relation between Council and Court. 


19. The design of the Court makes no adequate provision 
for the proper functioning of adherent non-members of the 
League: The Protocol of Signature permits a non-member 
of the League to adhere, but the Statute does not contain any 
provisions which permit of its adaptation in conformity with 
the Protocol of Signature. The design of the Court, as con- 
ceived by the Peace Conference at Paris, as interpreted by the 
Council, as drawn by the Advisory Committee of Jurists, as 
modified by the Council, as adopted by the Assembly, and as 
ratified by its members, is part of the fabric and experiment 
of the League of Nations. Thus, a non-member state may 
adhere to the Court but it does not appear by what process it 
may withdraw; the Statute may be amended directly or in- 
directly but the manner in which a non-member may participate 
in the future instruments which may affect the Court does not 
materialize; and the sanctions may be enforced for members of 
the League, but apparently not for non-members of the League. 
These inequalities as between member states which have a voice 
in the control of the general policies of the Court and non- 
member states which have no such voice, constitute obstacles 
to be considered before, rather than after, adherence. 


20. The proposal for the adherence of the United States 
stipulating that the Statute shall not be amended without 


16 THE SENATE AND THE COURT 


the consent of this government is inadequate: In view of 
the foregoing analysis of the design of the Court it would ap- 
pear that the condition contained in the Harding-Hughes pro- 
posal, to the effect that the Statute shall not be amended with- 
out the consent of the United States, is inadequate in that it 
does not extend to independent acts which may interpret or 
modify the Statute; and in that it makes no provision for ex- 
ercising a check upon the general policies of the Court as they 
may be developed by the League of Nations through amend- 
ment of Article 14 of the Covenant or through treaties con- 
cluded in accordance with Article 36 of the Statute. 


CHAT EER Vit 
ORGANIZATION OF THE COURT 


21. The Permanent Court of International Justice is or- 
ganized in addition to the Permanent Court of Arbitration, 
and parties are at liberty to resort to other tribunals: 
Article 1 of the Statute establishes the Court primarily for the 
purpose of exercising the obligatory jurisdiction conferred by 
the Peace Treaties and the advisory jurisdiction conferred by 
Article 14 of the Covenant. It was necessary to make resort 
to the Court optional under Article 1, in accordance with the 
elimination of the obligatory jurisdiction which had been recom- 
mended by the Advisory Committee of Jurists, and in order 
to leave free members of the League which were parties to 
agreements providing for arbitration at the Hague, or to enable 
them to resort to the Council, or to the special tribunals men- 
tioned in Article 13 of the Covenant. The inclusion of the 
reference to Article 14 of the Covenant in Article 1 of the 
Statute makes the Court an integral part of the organization of 
the League. 


22. The latitude permitted under Article 1 of the Stat- 
ute constitutes the Court a co-existing tribunal in an inter- 
national system: The general system of which the Court is 
a part comprises: (1) Conciliation and inquiry proceedings, 
conducted by the Council of the League, to which the Court 
may be advisory. (2) The Conference of Ambassadors, au- 
thorized to deal with boundary questions under the Peace Trea- 
ties, to which the Court may be advisory through the Council. 

17 


18 THE SENATE AND THE COURT 


(3) The Reparation Commission, authorized to deal with ques- 
tions of reparation, in connection with which the Court has 
jurisdiction in specified instances and to which Commission the 
Court may propose nominations for arbitrators. (4) Mixed 
Arbitral Tribunals, authorized to settle economic controver- 
sies, to which the Court has no specific relation. (5) Spe- 
cial tribunals for arbitration, created for particular purposes, 
which may refer legal questions to the Court. (6) The 
Permanent Court of Arbitration which is free to hear and 
determine political questions not deemed suitable for sub- 
mission to the Court; but which matters the Council is also 
fully authorized to hear and determine. (7) Conciliation com- 
missions provided for in treaties, particularly in the Locarno 
Treaty of Mutual Guarantee, wherein questions not involving 
the respective rights of the parties are reserved to a commission 
of conciliation, and in the Locarno Arbitration Treaties 
wherein the adjudication of disputes is entrusted to such com- 
missions. The existence and the development of these various 
kinds of tribunals do not permit of the inference that the 
Court constitutes the only effective international Sano for 
the settlement of international disputes. 


23. Members of the Court comprise ordinary judges, 
deputy judges and national judges for special cases: The 
Court consists of eleven ordinary judges and four deputy 
judges.t The full Court sits, unless other provision is made. 
It may transact business with less judges, as nine constitute 
a quorum, or it may have a greater number, for each party is 
entitled to have a national on the Court when a judgment is 
rendered. In any case, the decision is taken by a majority 
vote; and in case of a tie the President or his deputy shall 
have the casting vote. The term of office is for a period of 
nine years; and judges shall continue to discharge their duties 


1 For text of Rules of the Court, see Annex ITI. 


ORGANIZATION OF. THE COURT 19 


until their places are filled; and although replaced they may 
finish any cases begun during their incumbency. Deputy judges 
are called upon to sit in the order of a list prepared by the 
Court with regard to priority of election and secondly of age. 
The rules adopted by the Court provide that they shall be sum- 
moned in rotation unless they are so far distant that a summons 
will not reach them in time; but such judges shall be called 
upon, if possible, on the next occasion when the presence of a 
deputy judge is required. When a deputy judge is summoned 
to sit as a national judge, the order of rotation, as prescribed 
in the rules, is not affected thereby. Every member before 
taking office shall make a solemn declaration in open court that 
he will exercise his powers impartially and conscientiously. 


24. Certain duties are considered to be incompatible with 
those of a member of the Court: Article 16 of the Statute 
provides that ordinary members of the Court may not exercise 
any political or administrative function; but this restriction does 
not apply to deputy judges except when they are performing 
their duties in Court. It was the opinion of the Advisory Com- 
mittee of Jurists that a judge should continue to administer 
justice in his own country or a professor to give lectures, or a 
member of Parliament to serve. But members of executive 
branches of government, while they might be eligible as arbi- 
trators, were not eligible as judges of the Court, especially in 
view of the fact that vacations would not be sufficiently long, 
nor would judges possess an independent spirit because of being 
engaged in active politics. The question is one of incom- 
patibility not disqualification and the person elected may choose 
which post he will take. International duties, such as represent- 
ing a state in the League of Nations, are deemed to be incom- 
patible; but not membership in the Permanent Court of Ar- 
bitration. Article 24 of the Statute provides that under cer- 
tain circumstances members of the Court shall not sit. If 


20 THE SENATE AND THE COURT 


a member considers that he should not take part in a decision 
in a particular case, he so informs the President; and if the 
President considers that a member should not sit in a particular 
case, he may give him notice accordingly; and in case of dis- 
agreement the Court is to decide the matter. 


25. The Court is authorized by the Statute to complete 
its organization in certain particulars: The Court elects its 
own president and vice-president for a period of three years.’ 
It appoints a registrar whose duties are not deemed to 
be incompatible with those of the Secretary-General of the 
Permanent Court of Arbitration? The Court may or- 
ganize a special chamber to hear labor cases, including par- 
ticularly those provided for in Part XIII of the Treaty of 
Versailles; and it may choose assessors to serve therein; * 
also it may organize a special chamber to hear cases concerning 
transit and communications, particularly those provided for in 
Part XII of the Treaty of Versailles; and it may choose 
assessors to serve therein.’ The members of these cham- 
bers are limited to five and are appointed by the Court for a 
period of three years. The Court may appoint the members of 
a chamber of summary procedure consisting of three members 
to serve annually. The meetings of these chambers shall be 

2The officers elected for the period ending Dec. 3Ist, 1924, were: 
President, M. Loder (Netherlands); Vice-President, M. Weiss 
(France). The present officers are: President, M. Huber (Switzer- 
land); Vice-President, M. Weiss (France). The Registrar is M. 
Hammarskjold. 

8 While it may have been the intention of this provision to combine 
the two offices, such amalgamation has not taken place. 

4For discussion, see Chapter XII on Jurisdiction with Respect to 
International Labor. 

5For discussion, see Chapter XIII, on Jurisdiction with Respect to 
Transit and Communications. 

6 The following are the members of the Chamber of Summary Pro- 
cedure for the year 1925: M. Loder, M. Weiss, and M. Huber, mem- 
bers; Lord Finlay and M. Altamira, substitutes. 


ORGANIZATION OF THE COURT, 21 


called by the President whenever the parties request that a 
case be heard and determined by such chambers. The seat of 
the Court is established at The Hague and the President and 
Registrar shall reside there. Sessions are to be held each year, 
beginning on the 15th of June, and extraordinary sessions may 
be summoned by the President, whenever necessary. Eight 
sessions have been held as of October, 1925. Of these, four 
were extraordinary sessions, namely, the second session called 
in the matter of the Tunis and Morocco Nationality Decrees; 
the fourth on the question of Jaworzina; the sixth dealing with 
the Mavrommatis Jerusalem Concessions and the exchange of 
Greek and Turkish population; and the seventh session in the 
matter of the Danzig Postal Service. A fifth extraordinary 
session has been called to consider the interpretation of the 
powers of the Council raised in the controversy over Mosul.? 


26. The expenses of the Court are determined and paid 
by the League of Nations: The expenses are provided for 
in a budget approved by the Council which fixes the salary of 
judges, the allowance for their expenses, the amount of their 
pensions and the general operating expenses. The Council may 
not recommend a decrease in the salaries of judges during their 
term of office. This budget is then submitted to the Assembly 
for its approval. The Council recommends the ratio of 
apportionment among members of the League. All members 
are assessed, irrespective of whether they have adhered or not 
to the Statute, on the theory that the Court is the judicial organ 
of the League and as such should be supported by its entire 
membership. Members include their assessment for the Court 
in their payments to the League. The amount apportioned for 
the use of the Court in 1925 was $368,195.30; or about one 
seventh of the budget of the League, exclusive of the Inter- 
national Labor Office. 


7For summary of advisory opinions and judgments, see Annex I. 


22 THE SENATE AND THE COURT 


27. The payment of the expenses of the Court by the 
League entitles the latter to a report on the work of the 
Court:*® In accordance with a recommendation of the Fifth 
Assembly, the Court submits a yearly report on its work, which 
is distributed to members of the Assembly together with the 
report on the work of the Council and of the Secretariat.° 


8 The First Yearly Report was distributed to the Sixth Assembly as 
Doc. A. 7 (b), 1925. 
® During discussion of the question Dr. Nansen (Norway) said: 

It would also be very convenient for this Assembly to have a short 
summary of the activities of the Permanent Court of International 
Justice. The Assembly has to vote the money for the work of the 
Court, and it is, therefore, natural that it should wish to see some 
account of what is being done by that organization. I realise, of 
course, that the Court is a separate body—that it is absolutely inde- 
pendent of the Council, but I think some method might be found by 
which the general report could contain just a summary of the de- 
cisions taken by the Court and of the judgments given by it. (Rec- 
ords of the Fifth Assembly, plenary Meetings, p. 37.) 

To this criticism M. Hymans (Belgium), speaking for the Council, 
replied, pointing out that advisory opinions given to the Council had 
been reported upon. He added: 

There was strely no occasion for us to refer in the report to the 
judgments delivered by the Court in its capacity as the Supreme 
Court in inter-state disputes. Nevertheless, I fully realise the im- 
portance which Dr. Nansen attaches to the matter, and I see no 
reason why the Assembly should not recommend that, in future, the 
report on the work of the Council should include all information 
regarding those activities of the Permanent Court of International 
Justice which are of interest to the Assembly. I would add, how- 
ever—and my colleague has himself referred to the point—that the 
Permanent Court is an independent institution and we cannot take 
upon ourselves to prepare summaries of its work. 

Accordingly, if the Assembly approves such a recommendation, 
the Council will forthwith submit it to the Permanent Court of 
International Justice, with a request that the Court should prepare 
a report on its work and the awards which it has given. This 
would appear to be the best means of settling the question. (Jbid., 


p. 38.) 


ORGANIZATION OF THE COURT 23 


While the discussion on this subject in the Fifth Assembly 
emphasized that the Assembly considered the Court to be an 
independent body, on the work of which the Council was not 
authorized to report, the Assembly did not hesitate to request 
the Court itself to prepare and submit such report. The 
action goes far toward proving that the Court may be independ- 
ent in theory but is not so in practice. 


28. Non-members of the League desiring to adhere to 
the Court Statute and pay a share of the expenses must do 
so through the League of Nations: Such participation re- 
quires non-member states to co-operate in preparing the budget, 
in its apportionment, and in payments. The Harding-Hughes 
proposal covers only the matter of apportionment. The recom- 
mendation stipulates that the United States will pay a fair share 
of the expenses of the Court, as may be determined and ap- 
propriated from time to time by the Congress of the United 
States. This proposal apparently does not entitle this govern- 
ment to a voice in determining the amount of the budget nor 
in fixing the ratios for other states; nor does it specify the 
manner in which such payments, as Congress may determine, 
shall be made. ‘It is a question whether this proposal, wherein 
the United States may reserve the right to determine its share 
of expenses at its own discretion, is practicable in relation to 
other states which may have no way of knowing in advance 
what position Congress will take. It would seem that a recom- 
mendation whereby the United States will participate in making 
up a budget, at the same time agreeing upon the proportional 
share which it will carry, would be equally effective as a safe- 
guard and would not embarrass states which are not privileged 
to determine their own assessment at such time and in such 
amount as they choose. 


29. The principles of procedure are laid down in the Stat- 
ute: (1) The official languages of the Court shall be French 


24 THE SENATE AND THE COURT 


and English. The Court will determine which text is 
authoritative; but other languages may be used with the 
authorization of the Court. (2) Cases are brought before the 
Court by notification of the special agreement under which 
they are to be submitted, or by written application. The com- 
munication must indicate the subject of the dispute and name 
the contesting parties. (3) All members of the League are 
notified through the Secretary-General of the League of all 
matters submitted to the Court. (4) The Court may indicate 
any provisional measures which it thinks should be taken to 
preserve the respective rights of either party. Notice of such 
measures shall be given to the parties and to the Council. 
(5) Parties may be represented by agents; they may have 
counsel and the procedure shall consist of written and oral 
pleadings ; the latter consists of hearings by the Court of wit- 
nesses, experts, agents and counsel. (6) Hearings are under 
the control of the President and they are public unless the 
Court shall decide otherwise or unless the parties demand that 
the public be not admitted. (7) The Court, at any time, may 
entrust any individual or bureau, commission, or other organiza- 
tion that it may select, with the task of carrying out an inquiry 
or giving an expert opinion. (8) Whenever a party fails to 
appear or to defend its claim, the other party may call upon the 
Court to decide in favor of its claim. But the Court, before 
doing so, must satisfy itself that it has jurisdiction in accordance 
with Articles 36 and 37 of the Statute; and also that the claim 
is well founded in fact and in law. (9) All questions are 
decided by a majority vote and, in the event of a tie, the 
President or his deputy will have the casting vote. 
(10) Should a state consider that it has an interest of a legal 
nature, which may be affected by the decision in the case, it may 
submit a request to the Court to be permitted to intervene; but 
if a state uses this right, the construction given by the Court 


ORGANIZATION OF THE COURT 25 


in a decision will be binding upon it. (11) Unless otherwise 
decided, each party bears its own costs. 


30. The principles governing judgments of the Court are 
specified in the Statute: The Court takes its judicial de- 
cisions in the form of a judgment. (1) The judgment shall 
state the reason on which it is based and it shall contain the 
names of the judges who have taken part. It may be taken by 
a majority vote and judges having a dissenting view are en- 
titled to state their opinion and the reason therefor. The 
judgment is to be signed by the President and is to be read in 
open court. (2) The decision of the Court has no binding 
force except between the parties and in respect of that par- 
ticular case. (3) The judgment is final and without appeal; 
but in the event of a dispute as to its meaning and scope the 
Court shall construe it upon request of the party.° (4) The 
Court may revise its own judgment upon application from one 
of the parties, based upon the discovery of some fact of such 
a nature as to be a decisive factor which fact was, when the 
judgment was given, unknown to the Court and to the party 
claiming revision, and, provided, the ignorance was not due to 
negligence. The Court may require compliance with the judg- 
ment before granting the application. of revision and the applica- 
tion must be made within six months after the discovery of 
the new fact and cannot be made after the lapse of ten years 
from the date of the sentence. 


31. The Court is authorized to make rules to carry out 
the foregoing principles: The rules adopted by the Court 
for hearing and determining cases provide among other things: 
(1) For the order of precedence of judges, deputy judges and 


10 Such request was submitted by Greece in the case of judgment No. 


3; see Annex I. 
11 For Rules of the Court, see Annex ITI. 


26 THE SENATE AND THE COURT 


national judges. (2) For the selection of national judges when 
there are several parties in interest and for action in case of fail- 
ure to notify the Court of a selection within the prescribed time. 
(3) For the form of oath to be used by judges called upon to 
complete the Court which form adds “honorably and faithfully” 
to the terms “impartially and conscientiously” required of ordi- 
nary judges. (4) For the dismissal of a member of the Court, 
the member affected being permitted to make an explanation. 
(5) For the collection of information necessary to assist the 
Court in the selection of technical assessors, these assessors to 
be appointed by a majority vote of the Court or of the Special 
Chamber, whichever deals with the matter. (6) For the time 
and manner of election of officers of the Court and for the 
assignment of their duties. (7) For the creation of the special 
chambers relating to labor, to transit and to summary pro- 
cedure. (8) For the selection and definition of duties of the 
Registrar, and manner of keeping the registry of the Court. 
(9) For the working of the Court. (10) For contentious pro- 
cedure. (11) For the institution of proceedings. (12) For 
interim protection when the Court is not sitting, through recom- 
mendations for the preservation, in the meantime, of the rights 
of parties. (13) For intervention. (14) For summary pro- 
cedure. 


32. The Statute lays down no principles and contains no 
procedure for advisory jurisdiction: The omission leaves to 
the Court full discretion to determine what procedure it will 
follow, generally, or on any given question. The Court has 
adopted no rules other than that opinions shall be published after 
deliberation by the full Court; that opinions of dissenting 
judges may be attached; and as to the form in which questions 
shall be submitted to the Court. In the twelve matters sub- 
mitted, the Court has chosen to apply the procedure laid down 
for judgments in the Statute; but the Court may at any time 


ORGANIZATION OF THE COURT a7 


and in any case lay down an entirely new procedure, or it may 
conduct the proceedings informally, or it may alter, in any 
particular, any existing principle or rule now applicable to 
judgments. The Court may take such action irrespective of 
whether the matter is a case involving rights of parties or a 
theoretical question. 


33. Through its organization the Court is attached to the 
League: The following constitute the important features of 
the attachment: (1) Only members of the League and states 
mentioned in the Annex to the Covenant may adhere to the 
Court Statute (Protocol of Signature). (2) The Court is 
organized in accordance with Article 14 of the Covenant of the 
League of Nations (Article1). (3) National groups of states, 
members of the League, nominate the judges (Article 5). (4) 
The Assembly and Council elect the judges, fill the vacancies 
and increase the number of judges (Articles 1-14). Vacancies 
are certified by the Court to the Secretary-General of the 
League (Article 18). (5) Not more than one national of a 
member of the League may serve at the same time as a judge 
of the Court (Article 10). (6) In the event that the Court 
elects a judge, the Council prescribes the time for such election 
(Article 12). (7) Members of the League nominate lists of 
assessors to be attached to the Court for labor cases (Article 
26); and for transit and communication cases (Article 27). 
(8) Salaries and pensions of judges and the expenses of the 
Court are fixed by the Council and approved by the Assembly. 
The amount is apportioned among members of the League and 
is paid by them, irrespective of their adherence to the Statute 
(Articles 32-33). (9) Notice of all cases brought before the 
Court is sent to members of the League through the Secretary- 
General of the League (Article 40). (10) Notice of pro- 
visional measures which the Court recommends be taken to 
preserve the rights of parties, pending a final settlement, is 


28 THE SENATE AND THE COURT 


transmitted to the Council as well as to the parties for such 
action as the former may wish to take (Article 41).%? 


34. Proposals for the adherence of the United States to 
the Statute would either acquiesce in the present organiza- 
tion or would disrupt the scheme: The Harding-Hughes 
plan lays the burden of adjustment upon the United States 
without proposing alterations in the Peace Treaties, Covenant 
or Statute.1? The Lodge and Pepper proposals seek to separate 
the Court from the League, thereby fundamentally altering its 
basic organization and requiring amendment of the Statute if 
not of the Covenant. No constructive proposal has been 
made for adherence to the Statute upon conditions which would 
increase the effectiveness of the Court in the advancement of 
judicial decisions in the settlement of international controversies. 


12 The Report of the Advisory Committee of Jurists gives as a reason 
for this provision the following: 

In the present case, these measures are, once they have been sug- 
gested by a Court of the League of Nations, indicated to the Council 
of the League as the body most competent to take such action, in 
order that it may suggest that the measures calculated to ensure the 
effect of sentences of Arbitration be carried out. P. C. J. J. Pub. 
Proceedings of the Committee, p. 736. 

18 For text of proposals submitted to the Senate, see Chapter XVIII. 


CHAPTER III 
NOMINATION OF JUDGES 


35. The Court is composed of a body of independent 
judges elected regardless of their nationality: The judges 
must be persons of high moral character; they are to possess the 
qualifications required in their respective countries for appoint- 
ment to the highest judicial offices; and they are to be jurists 
of recognized competence in international law. 


36. Judges are nominated by members of the League 
and states mentioned in the Annex to the Covenant: The 
machinery used for the nomination is the adaptation of the 
Hague Organization to the purposes of the League. The 
Hague machinery consists of national groups, not to exceed 
four persons from each state, who are selected by the states 
to act as arbitrators under the Hague Convention for the Pacific 
Settlement of International Disputes. Their duty, as defined 
by the Convention under which they are appointed, is to act as 
judges in arbitral tribunals whenever they are requested to do 
so by parties. The Convention was ratified by states, including 
the United States, with this purpose in view. The Statute 
establishing the Court authorizes these national groups to nomi- 
nate persons to be elected by the League of Nations, subject 
to the limitation that such groups must belong to members of 
the League or to states mentioned in the Annex to the Covenant. 
The significance of including the last named is that they have 
signed, but not ratified, the Treaty of Versailles, thereby assent- 
ing in part to the principles contained in the Treaty, thus 

29 


30 THE SENATE AND THE COURT 


affording a basis of eligibility for participation in nominations. 
The Statute authorizes members of the League, having no 
national groups accredited to the Hague Organization, to pre- 
pare lists under the conditions prescribed for national groups 
under Article 44 of the Hague Convention. These national 
groups do not, however, function as arbitrators; they function 
merely as nominating bodies within their respective states. 


37. The use of the Hague Organization for nominations 
places it in a subordinate capacity within the League 
System: The method of using the existing Hague machinery 
for the purpose of nomination was proposed by Mr. Root to 
the Advisory Committee of Jurists. Mr. Root stated to the 
Committee that he had relied upon two fundamental ideas: 
First, the new Court should form part of a judicial system in 
which the old Court of Arbitration, still in existence, would also 
be included; and second, the new Court should also form part 
of the system of the League of Nations. Concerning the 
method by which this might be accomplished, Mr. Root thought 
that “the participation of the members of the Court of Arbitra- 
tion should be at the beginning and not at the end of the pro- 
cedure. . . . Otherwise the part played by the Council and the 
Assembly would be too much reduced; it is only the final de- 
cision that really counts.” Mr. Root pointed out that these 
groups were in a better position in the various countries than 
other persons to take into consideration the questions with which 
the Court will deal; to know the relative merits of persons to 
be elected in various countries; to escape suspicion of making 
a political choice; and to have an international mind. 


38. Nominations are set in motion by the League: 
These two sets of national groups—those accredited to the 
Hague and those created in its image—do not make nominations 


1P.C.I. J. Pub. Proceedings of the Committee, p. 151. 


NOMINATION OF JUDGES 31 


until requested to do so by the Secretary-General. He invites 
‘the groups, through notification to the state department in 
charge of foreign affairs, to make nominations. These national 
groups then assemble in their own countries, not as a nominat- 
ing body at The Hague. They are authorized by the Statute 
to nominate four persons, only two of whom may be nationals 
of the state making the nomination. The principle is here 
established that one state has the right to nominate the national 
of another state for membership in the Court without the con- 
sent or approval of that state. The reason given for this rule 
was that small states might wish to select nationals from large 
states. This right was exercised in the nomination of a national 
of the United States, leading to the subsequent election of Mr. 
Moore. 


39. The procedure for making nominations is not bind- 
ing on nominators: National groups, in making their selec- 
tions, are recommended to consult their highest court of justice, 
legal faculties, schools of law and other bodies devoted to the 
study of law. They need not do so, and failure to do so does 
not make the nominations void. When they do consult these 
various bodies, the recommendations are not binding upon the 
group, for the obligation to follow them is moral rather than 
legal. From the names thus submitted, the Secretary-General 
prepares a list which he submits to the Council and to the 
Assembly. This is the only list of persons eligible for election, 
except when a deadlock occurs between Assembly and Council. 
A Joint Commission may then propose a name not on the 
regular list. 


40. Nominations thus made are not binding upon the 
electors representing the country of the national group: 
While governments doubtless exercise an influence over the 
national groups making the nomination, representatives in the 


32 THE SENATE AND THE COURT 


Council and Assembly are free to vote for any candidate of 
their choice regardless of nationality. 


41. The machinery for nominations is controlled by the 
League: (1) It is the national groups of arbitrators and not 
the Permanent Court of Arbitration which make nominations. 
(2) It is the national groups of members of the League, and 
of states mentioned in the Annex which are authorized to make 
the nominations. (3) Such groups are to make nominations 
upon the invitation of the Secretary-General of the League. 
(4) Each group will then meet in its own state. (5) The list 
of nominations will be forwarded by each group to the 
Secretary-General. (6) Members of the League, whether or 
not they are signatory to the Statute, may make such nomina- 
tions. (7) Conversely, states associated with the Hague 
Organization but not members of the League nor mentioned 
in the Annex to the Covenant, may not take part. (8) Finally, 
therefore, signature to the Covenant and not signature to the 
Hague Convention of 1907 qualifies a state to participate in 
nominations. 


42. The League is not dependent upon the Hague Or- 
ganization: It does not appear from the foregoing statement 
that the League of Nations need be dependent upon the Hague 
Organization for the nomination of judges; for the reason that 
national groups created in any member state and directly co- 
operating with the Secretary-General of the League may satis- 
factorily perform the service of nomination. The adaptation 
of the Hague machinery is, therefore, a matter of convenience 
rather than of necessity. This fact is demonstrated by the act 
of the League in limiting the activities of national groups to 
members of the League and to states mentioned in the Annex to 
the Covenant; by creating groups in states not represented at 
The Hague; and by having each group perform the function 
of nomination in its own country. 


NOMINATION OF JUDGES 33 


43. The use of the Hague groups for nominations is not 
authorized by the Hague Convention: (1) The Hague Or- 
ganization, without the consent of its signatories assembled in 
convention, is affiliated at least in name with the League of Na- 
tions and with the Court. This practice does not appear to be 
authorized by the Hague Convention. (2) The judicial duties 
laid upon the arbitrators are augmented by new duties which are 
political, namely, making nominations for office. The Conven- 
tion under which these bodies were created does not authorize 
national groups to perform these duties. (3) These new duties 
were laid upon the arbitrators by a convention signed by a part 
of the signatories to the Hague Convention of 1907; and a prac- 
tice is established whereby the organization and machinery main- 
tained by one group of signatories may be adapted to different 
ends by another group of signatories. 


44. A convention negotiated and ratified for one purpose 
is used for other purposes not ratified: The United States 
offers an instance in point. The Senate ratified the Hague 
Convention of 1907 which created these national groups and 
defined their duties. That body has hitherto refused to accept 
the Statute which lays new duties upon these appointees. The 
national group of the United States appointed under this Con- 
vention raised a question when it was invited by the Secretary- 
General of the League to make nominations. On that occasion 
the members of the group declined, giving as a reason that 
under the Hague Convention they were appointed to perform 
the function contemplated in that Convention, and the invitation 
to perform functions under another treaty to which the United 
‘States was not a party and in respect to which no authority 
was conferred upon the group, could, therefore, not be accepted. 
This position was reversed, in 1923, upon the expressed wish 
of the Secretary of State; and the national group forwarded 
to the Secretary-General of the League nominations to fill the 


34 THE SENATE AND THE COURT 


vacancy created by the death of Judge Barbosa. The decision 
of the national group of the United States to participate in the 
nomination of judges establishes a principle which involves a 
fundamental right of the Senate. For it is apparent if an 
instrument negotiated and ratified for one purpose can be made 
to serve other ends through provisions contained in other in- 
struments which the Senate either has not had the opportunity 
to ratify or has refused to ratify, the integrity of conventions 
will be seriously impaired and the right of the Senate will be 
infringed upon, by the executive department. 


45. The proposals for adherence of the United States to 
the Protocol establishing the Court do not contemplate 
alterations of the present plan: The Harding-Hughes pro- 
posal is general in character and leaves to the State Department 
the precise method of participating in the nomination of judges. 
The action taken by the national group of the United States in 
nominating a successor to Judge Barbosa indicates that the 
present method of using the national groups for purposes of 
nominations has the support of the Administration. The vari- 
ous Senate Resolutions also accept the present method. Nev- 
ertheless, a question arises concerning the policy with reference 
to the Hague and League Organizations and whether the former 
should remain tributary to the latter through the device of as- 
signing to the Hague Organization through independent con- 
ventions duties not provided for in the Convention of 1907. If 
this precedent for nominations is permitted to stand, the entire 
character of the Hague Organization is susceptible to alteration 
without the consent of the signatory states and its prestige may 
be used to advance causes with which such states may have 
little in common. 


CHAPTER IV 
ELECTION OF JUDGES 


46. Judges of the Court are elected concurrently by the 
Assembly and Council: The electors are members of the 
League, irrespective of whether or not they are signatory to 
the Court Statute. The Council and Assembly are not electoral 
colleges ; for elections constitute an item of the regular business 
of the sessions of these bodies.+ 


47. The electors are to bear in mind certain qualifications 
for judges: According to Article 9 of the Statute the whole 
body of the Court is to represent the main forms of civilization 
and the principal legal systems. The Advisory Committee of 
Jurists had in mind distinct systems of legal education, point- 
ing out that “judges in England and the United States do not 
act in the same way as judges in other countries; the former 
attach more importance to precedent, the latter to logical deduc- 
tion and to the logical sequence of inferences from authorities 
and principles.” ? 


1QOn September roth, 1923, an election was held to fill a vacancy. 
The regular agenda of the Assembly for that day included the following 
items, indicating a regular order of business: (17) Substitute dele- 
gates for Cuba and Czechoslovakia, appointment; (18) Budget; (19) 
Protection of women and children in the Near East; (20) Permanent 
Court of International Justice: election of a judge in place of M. 
Ruy Barbosa; (21) Admission of Irish Free State; (22) Earthquake 
disaster in Japan. (Records of the Fourth Assembly, p. 21.) 

2 Records of the First Assembly, Committees, Vol. I., p. 434. 

35 


36 THE SENATE AND THE COURT 


48. The method of election is prescribed by the Statute: 
The list of candidates is submitted to both the Council and the 
Assembly. These two bodies meet separately but at the same 
time, and each, by secret ballot, proceeds to nominate eleven 
judges, by absolute majority vote. The lists nominated by each 
body are then compared and the judges who have received a 
majority of all the votes cast in both Assembly and Council are 
declared elected. The same procedure is followed for the elec- 
tion of deputy judges. In the event of more than one national 
of the same member of the League being elected, only the 
eldest shall serve. In the original draft Scheme this qualifica- 
tion attached to all states, but the Assembly apparently antic- 
ipating only a League Court, modified Article 10 of the draft 
Statute. No limitation is placed upon the nationals which a 
non-member may have and it would seem that such an adher- 
ent to the Statute may have more than one national on the 
Court. In the event that the names receiving the highest vote 
do not coincide and vacancies remain to be filled, a second and, 
if necessary, a third meeting takes place. In the event that a 
vacancy remains after the third meeting of the Assembly and 
Council, on the request of either, a Joint Conference shall be ap- 
pointed, consisting of three members each from the two bodies 
for the purpose of choosing one name for each vacant place to 
submit to the Council and Assembly. The submission of such 
name may be by majority vote of the Joint Conference. If the 
Conference submits a name, other than from the list submitted 
by the Secretary-General, as it may do under Article 12 of the 
Statute, then the choice must be made unanimously. If the 
Joint Conference is satisfied that it will not succeed in procur- 
ing an election, the members of the Court already elected shall, 
within a period to be fixed by the Council, proceed to fill the 
vacant seats by election from candidates who have already re- 
ceived votes in either the Assembly or Council. This last step 
is a recognition of the principle of self-perpetuation whereby 


ELECTION OF JUDGES 37 


existing members of the Court may elect their successors. It 
furnishes a precedent, if one is required, for the suggestion 
made by the late President Harding that the Court should 
elect its own members; for the principle is here clearly estab- 
lished, leaving open to doubt only the number of vacancies 
which it may fall to the lot of the Court to fill. 


49. Vacancies are filled by the method prescribed for 
elections: Judges continue to discharge their duties until 
their places are filled. A member of the Court elected to re- 
place a member whose term had not expired holds office for the 
unexpired term. Replaced judges shall, if possible, finish any 
cases which they may have begun. These provisions ensure a 
continuously complete Court and continuity in work.’ 


50. Members of the Court are removable only by their 
colleagues: Members of the Court, thus elected, serve for a 
period of nine years. They may be re-elected and are to con- 
tinue to discharge their duties until their places are filled. They 
are not removable by the Assembly and Council which elected 
them and they may not be impeached. A judge may be dis- 
missed only by the unanimous vote of his associates, including 


8 One vacancy has occurred, namely that caused by the death of M. 
Barbosa (Brazil). This vacancy was filled on September roth, 1923, 
on the first ballot by the election of M. Pessoa (Brazil). 

On September 14th-16th, 1921, the following were elected as judges 
and deputy judges: 

M. Altamira (Spain), M. Anzilotti (Italy), M. Barbosa (Brazil), 

M. de Bustamente (Cuba), Lord Finlay (Great Britain), M. Huber 

(Switzerland), M. Loder (Netherlands), Mr. Moore (United States), 

M. Nyholm (Denmark), M. Oda (Japan) and M. Weiss (France), 

judges; M. Beichman (Norway), M. Negulesco (Roumania), M. 

Wang (China), and M. Yovanovitch (Serb-Croat-Slovene State), 

deputy judges. The Court was formally opened on February 15th, 

1922, at The Hague. Mr. Moore is the only member from a state 

not a member of the League. 


38 THE SENATE AND THE COURT 


both judges and deputy judges, if in their opinion he has ceased 
to fulfill the requirements ; but the interpretation of the require- 
ments for this purpose is left to the discretion of the other 
judges. Notification to the Secretary-General of the League 
makes the place vacant. This provision establishes the prin- 
ciple that the Court, and not the electoral body, is the best judge 
of the fitness of a judicial officer. 


51. Judges thus elected are the representatives of the 
League: The plan for the election of judges appears to have 
resulted from the joint efforts of Mr. Root and Lord Philli- 
more, acting upon the suggestion of M. Bourgeois. It rep- 
resents a compromise from three alternatives—election of 
judges by the Council alone; exercise of this exclusive privilege 
by the Assembly; and resort to the Permanent Court of Ar- 
bitration. The difficulty which arose at the Hague Conference 
of 1907, which prevented agreement upon a method of electing 
judges by reason of conflicting national interests demanding 
equal representation, was here renewed. It was met by inter- 
posing the League of Nations, a political organization, between 
the states and the judges. Under this plan, judges are not 
elected as representatives of their states but become the 
judicial representatives of the League of Nations. In theory, 
a national judge is disassociated from his state and is thus 
made responsible to a community of states. 


52. The provision in the Statute whereby judges are 
elected by the Council and Assembly creates a direct legal 
relation between the Court and the League and between 
states which vote therein: This legal relation may be defined 
to be the responsibility placed upon the League to elect judges 
who thus become its representatives ; and to be the responsibility 
placed upon states to perform certain duties as members of the 
League, irrespective of their adherence to the Statute. 


ELECTION OF JUDGES 39 


53. This legal relation creates a practical problem for 
non-members of the League desiring to adhere only to the 
Statute: The Harding-Hughes proposal undertakes to solve 
this problem. With respect to the election of judges, Mr. 
Hughes, on February 14th, 1923, recommended that the United 
States should adhere to the Protocol of Signature establishing 
the Court upon condition that the United States shall be per- 
mitted to participate, through representatives designated for 
the purpose and upon equality with other states, members 
respectively of the Council and Assembly of the League of 
Nations, in any and all proceedings for the election of judges 
or for filling vacancies. But such adherence and the perform- 
ance of these acts shall not be taken to involve any legal rela- 
tion on the part of the United States to the League of Nations 
or the assumption of any obligation by the United States un- 
der the Covenant of the League. This recommendation was 
referred by the Senate to the Committee on Foreign Relations 
and commented upon favorably by President Coolidge in his 
address to Congress on December 6th, 1923. No other action 
having been taken, Senator King, on December roth, 1923, 
introduced a Resolution embodying the Harding-Hughes plan. 
Beyond making a general declaration and stating that the par- 
ticipation in the election of judges shall be through representa- 
tives, the resolution defines no procedure and leaves to the 
State Department the interpretation of what constitutes commit- 
ments. Senator Swanson’s Resolution follows the same line.® 


54. Other proposals before the Senate would solve the 
problem of legal relations with the League by separating 
the Court from the League: The first of these resolutions 
was introduced by Senator Lenroot in which he follows the 
principle of the Harding-Hughes plan, namely that adherence 


5 Senate Resolution No. 32, 68th Congress; First Session, Dec. 10, 
1923. See Annex V for text of Swanson Resolution. 


40 THE SENATE AND THE COURT 


shall not be understood to involve any legal relationship on the 
part of the United States nor signify the assumption of any 
obligations under the Covenant.* But, unlike the foregoing 
resolution, it undertakes to interpret this principle by providing 
that all states having diplomatic representatives at The Hague 
shall be permitted to adhere, which provision would open the 
Court to universal adherence. It provides, also, that all states 
shall be divided into two groups to be known as Group A, to 
include the states of the British Empire, France, the United 
States, Italy, Japan, Germany and Brazil; and Group B, com- 
prising all other states. If Germany does not adhere then 
Belgium shall be substituted. These diplomatic representatives 
are to constitute the electors, and each is to perform electoral 
duties in the manner now prescribed for the Council and As- 
sembly. The duties now performed by the Secretary-General 
of the League are to be undertaken by the Registrar of the 
Court. Senator Lenroot’s Resolution does not undertake to 
separate fully the Court from the League; but only provides 
for a voting mechanism not affiliated with any political or- 
ganization. A second resolution was proposed by the late 
Senator Lodge, then Chairman of the Committee on Foreign 
Relations.’ It provides for a complete separation of the Court 
from the League, retaining the present structure and designat- 
ing it as a “world court.” The plan provides for an electoral 
commission to consist: (1) Of a general committee composed 
of the representatives designated for that purpose by the sig- 
natory powers and (2) of a special committee to be composed 
of representatives designated for that purpose by the United 
States, the British Empire, France, Italy and Japan, together 
with the representatives of five other signatory Powers to be 


6 Senate Resolution No. 29, 68th Congress; First Session, Dec. 10, 
1923. 

7 Senate Resolution No. 122, 68th Congress, First Session, May 8, 
1924. For text, see Annex VI. 


ELECTION OF JUDGES 41 


selected by the General Committee in its discretion by majority 
vote from time to time. Each signatory Power shall have 
only one representative on each Committee. This provision is 
intended to rectify the seven votes of the British Empire in 
the Assembly. The Electoral Commission is to meet at The 
Hague or elsewhere if the General Committee so decides. The 
Electoral Commission is to hold a regular meeting within three 
months preceding the expiration of the term of office of a 
member of the Court; and, in case of a vacancy, a meeting is 
to be held as soon as practicable thereafter. The Electoral 
Commission is to have a permanent secretary who may be the 
Secretary-General of the Permanent Court of Arbitration and 
is to maintain a bureau at The Hague. The Court is to consist 
of twelve judges and four deputy judges and may be increased 
by a two-thirds vote of all the members of the special com- 
mittee to fifteen judges and six deputy judges. The nomina- 
tions are to be made by the national groups represented at the 
Permanent Court of Arbitration and states not represented 
shall make nominations in the same manner. These groups 
are to be requested to make nominations by the Secretary- 
General of the Permanent Court of Arbitration and each group 
may nominate four persons, two of whom may be nationals. 
The Secretary-General of the Permanent Court of Arbitration 
is to prepare the list and the two bodies are to meet independ- 
ently and judges are then to be elected in the same manner as 
at present by the Council and Assembly, including reference to 
a Joint Commission and to the Court in the event of a dead- 
lock. This plan substitutes an electoral commission for the 
League and makes the Secretary-General of the Permanent 
Court of Arbitration active in the nominations; and it makes 
possible the participation of all states. In the report accom- 
panying the Resolution it is stated that the purpose is to trans- 
form a League Court of Justice to a World Court of Justice 
without destroying its identity. This Resolution was referred 


42 THE SENATE AND THE COURT 


on March 8th, 1924, to the Committee on Foreign Relations 
which did not report the measure to the Senate. 


55. The plan reported by a majority of the Senate Com- 
mittee on Foreign Relations proposes a complete separa- 
tion of the Court from the League: This plan was proposed 
by Senator Pepper and was referred to the Committee on 
Foreign Relations, the Republican majority of which sub- 
mitted the measure, together with a report on May 26th, 
1924.8 It provided that representatives of all the signatories 
to the Protocol shall meet at such time and place as shall be 
designated by the Secretary-General of the Permanent Court 
of Arbitration and proceed to an election. These representa- 
tives shall ballot as an electoral assembly. The Principal Allied 
and Associated Powers, named in the Treaty of Versailles, to- 
gether with five other signatories to be elected by an Assembly 
of Signatories, shall ballot in a separate council, and both bodies 
shall then vote independently ; but not more than one vote shall 
be cast by the British Empire in either body. The Assembly 
and Council of the Signatories were substituted for the As- 
sembly and Council of the League throughout the provisions. 
In other respects, the procedure followed that laid down in the 
present Statute. In the Report accompanying the Resolution, 
the statement is made that the provision whereby judges are 
elected by the Assembly and Council of the League of Nations 
“creates a direct legal relation between the Court and the 
League, and between the League and any state that votes in 
its Assembly or Council’; and that the Resolution was drawn 
to satisfy the essential condition that adherence of the United 
States should not involve any legal relation, This Resolution, 
to become effective, would require an amendment of the Stat- 
ute. “The question,” stated the Report, “is whether the amend- 
ment shall be such as to prevent a legal relation between the 


8 Senate Resolution No. 234, 68th Congress; First Session, May 20, 
1924. For text of Resolution, see Annex VII. 


ELECTION OF JUDGES 43 


United States and the League or such as to sever for everybody 
and forever the existing legal relation between the Court and 
the League.” The Resolution takes the view that the latter 
proceeding is possible and desirable. 


56. The proposal of the Republican Administration is 
embodied in a resolution proposed by a Democratic Senator: 
The failure of any Republican Senator to introduce a measure 
embodying the Harding-Hughes proposal left the field open for 
its introduction through the minority party. On May 6th, 
1924, Senator Swanson introduced a resolution embodying this 
plan ;® and on March sth, 1925, he introduced a second Resolu- 
tion of similar import; +° but containing an additional reserva- 
tion concerning advisory opinions. 


57- The proposals before the Senate present two ex- 
tremes: The Harding-Hughes proposal contains certain broad 
conditions as to principle, leaving a considerable area for in- 
terpretation by the Department of State and placing the burden 
of adjustment upon the United States. It presents the problem 
whether the determination of what constitutes a legal relation 
to the League or the assumption of an obligation under the 
Covenant shall be left to the course of diplomacy or whether 
it shall be more precisely defined by the Senate. On the other 
hand, the Lenroot-Lodge-Pepper proposals would separate the 
Court from the League without taking into sufficient considera- 
tion the design of the Court and its serviceability to European 
states during the period of reconstruction. These plans transfer 
the burden of adjustment to the League. It would seem, there- 
fore, that a precise interpretation of the general reservations 
without disturbing the present design of the Court might offer 
a solution of the problem. 

® Senate Resolution No. 220, 68th Congress; First Session. 

10 Senate Resolution No. 5, 68th Congress; Second Session. 


11 Senator Willis, a Republican, introduced Resolution No. 6 contain- 
ing the substance of the Swanson Resolution, on March 5th, 1925. 


CHAPTER V 
NATIONAL JUDGES 


58. It is an accepted principle of law that no one is com- 
petent to be a judge in his own case: The fact that a con- 
trary rule has sometimes prevailed in arbitral proceedings has 
been one of the reasons for lack of confidence in arbitration. 
At the Hague Conference of 1907, the United States delegation 
endeavored to have national judges excluded from sitting in 
matters pertaining to their states. It was the view of Mr. 
Choate, spokesman for the United States delegation, that “in no 
case, unless the parties otherwise agree, shall any judge of the 
Court take part in the consideration or decision of any matter 
coming before the Court in which his own nation shall be a 
party.’* This proposal was, however, defeated. 


59. The question before the Advisory Committee of 
Jurists involved the guarantee of impartiality: The jurists 
were of the opinion, if it was desired that international law was 
to be interpreted and developed through the decisions of the 
Permanent Court of International Justice in a way to command 
public confidence, that some guarantee must be afforded that 
the judges sitting in any given controversy should not appear 
to be sympathetic with either party. The problem was how to 
substitute a judicial sense of responsibility for the prevailing 
arbitral practice. The question presented the following aspects: 
(1) In the event that each party appearing before the Court 


1 Proceedings of The Hague Peace Conference of 1907, Vol. II, 


p. 315. 
44 


NATIONAL JUDGES MAS 


has a judge on the bench the question arises: (1) Shall the judge 
refrain from sitting, thereby possibly diminishing too much 
the number of ordinary judges and involving the risk that the 
various forms of civilization and the principal legal systems 
might not be represented? (2) If one of the parties is rep- 
resented on the Court and the other is not, shall one judge 
withdraw or another be added? (3) If neither party is rep- 
resented, is it advisable that each party shall nominate a judge 
to sit in the case? 


60. The difference of opinion manifested at the Hague 
Conference of 1907 reappeared in 1920: ‘Those in favor of 
including a national of the party as a member of the Court 
submitted the following reasons: (1) Very different races, 
legal systems and civilizations exist; and each party should, 
therefore, have a judge sitting in the case to interpret and ex- 
plain matters connected with these characteristics. (2) The 
presence of such judges would be of assistance in drafting 
sentences and explanatory statements to remove the possibility 
of obstacles which national susceptibilities would be inclined 
to put in the way of their execution. (3) Nations would sub- 
mit cases with the assurance that the matter would be fully 
understood. (4) States have an instinctive distrust of a court 
composed entirely of foreign judges. Those opposed to a na- 
tional judge sitting in cases affecting the interests of his country 
objected on the following grounds: (1) The Court is to apply 
international law and if questions of national law arise, the 
Court itself is competent to clear up the matter. (2) The 
inclusion of national judges constitutes an arbitral tribunal not 
a court of justice. (3) Judges sitting occasionally in a case 
do not possess the true qualities of a judge. The Committee 
was of a majority opinion that nationals of each party should 
sit when the Court heard and determined a case and rendered 
a decision. 


46 THE SENATE AND THE COURT 


61. The Statute maintains the principle of national 
judges: (1) Judges of the nationality of each contesting 
party shall retain their right to sit in the case before the Court. 
(2) If the Court includes upon the bench a judge of the 
nationality of one of the parties, the other party may choose a 
judge, preferably from among the deputy judges or from the 
candidates nominated by the national groups. (3) If there is 
no judge of the nationality of the contesting parties on the 
Court then both may select a judge. (4) If there are several 
parties in interest they shall choose but one judge. 


62. Special provisions apply to national judges chosen 
ad hoc: (1) Such judges shall meet the same requirements 
as ordinary judges. (2) They shall take part in the decision 
on an equal footing. These provisions of the Statute were 
amplified by the Rules of the Court as follows: ? (1) National 
judges chosen from outside of the Court take precedence in 
order of age after deputy judges. (2) The Court may sit 
with a number of judges exceeding eleven when one or more 
parties choose a national judge for that particular case. (3) 
When there are several parties in interest they are limited to 
one national judge whom they select by common agreement 
within a given period but unless the parties notify the Court 
before the expiration of the time set they shall be regarded 
as having renounced their right. (4) Each judge summoned 
to complete the Court makes a solemn declaration to perform 
his duties as a judge honorably and faithfully, impartially and 
conscientiously. Only the two last named requirements are 
provided for in Article 20 of the Statute for ordinary judges. 


63. National judges are the representatives of the League 
and not of the states to which they belong: ‘The inter- 
position of the election machinery of the League makes the 


2 See Articles 2, 4, 5 of the Rules of the Court; Annex III. 


NATIONAL JUDGES 47 


members of the Court responsible to that body and not to 
their states. This constitutes an essential departure from the 
arbitral method whereby states may select nationals to act 
as judges and wherein both nationals may then choose a neutral. 
On the contrary, the nationals of a state need not be nominated 
by the national group of the state to which they belong. The 
members of the Court are, therefore, responsible to the League 
for rendering impartial and conscientious judgments. Any 
change in the established method of election would have a 
direct relation to the system of national judges in order to 
assure the independence of judges against the country from 
which they come. The precise effect which the interposition 
of the League may have in separating the judgment of a 
national judge from the interests of his country in a given case 
has not been revealed in a manner to permit of a fair deduction 
either way. In the matter of the first question concerning 
agricultural labor, M. Weiss, the French national, dissented 
from the opinion rendered against the contention of France. 
On the other hand, this same judge voted with the majority in 
the matter of the Tunis and Morocco Nationality Decrees where 
the opinion was given in disagreement with the French con- 
tention. In the matter of the Mavrommatis Palestine Conces- 
sions, Lord Finlay, the British national, together with other 
judges, rendered a minority opinion in the decision given in 
favor of the Courts’ having jurisdiction to hear the action 
brought by Greece against Great Britain. On the other hand, 
M. Anzilotti (Italy) dissented in the Kiel Canal Case, from 
a judgment rendered in favor of the Allied Powers.* It may 
be noted, however, in the election of a successor to Judge 
Barbosa whose death caused a vacancy, the political rule was 
followed, and a Brazilian was elected to succeed a Brazilian. 
It is conceivable that had the identity of interest between a 


8 For summary of opinions and judgments, see Annex I. 


48 THE SENATE AND THE COURT 


state and its national been subordinated to a community of in- 
terest, the choice might have fallen elsewhere. 


64. Judges appointed ad hoc furnish an exception in that 
they represent their states: National judges appointed for 
a particular case furnish an exception since such judges do not 
represent any international organization but are selected by their 
governments. In the case of the S. S. “Wimbledon,” M. 
Schicking, the national judge for Germany, together with other 
judges, dissented from the majority opinion in favor of the 
Allied Powers. In the case of the Mavrommatis Palestine 
Concessions, both decisions of the Court (concerning the Pal- 
estine Concessions and the Jerusalem Concession) were in cer- 
tain aspects unfavorable to Greece, but the Greek national judge, 
M. Caloyanni delivered no dissenting opinion. 


65. Equality of national judges is not maintained in the 
Chamber of Summary Procedure: The members of this 
Chamber are limited to three judges, appointed annually by 
the President of the Court. The parties, in electing to resort to 
such procedure, may be held to have voluntarily waived the 
right to have a national judge; but the fact remains that one of 
the parties may have to make a choice between the emergency 
presented and the exercise of the right to choose a national 
judge while the other party may have such a judge in the 
Chamber. In the matter of the interpretation of the Treaty 
of Neuilly, the only case heard by this Chamber, neither Bul- 
garia nor Greece had a national judge. 


66. Equality of national judges is maintained in the 
Special Chambers for labor and for transit and communica- 
tions: Articles 26 and 27 of the Statute provide, when there 
is a national of only one party sitting as a judge, one of the 
ordinary judges will be invited by the President to retire in 


NATIONAL JUDGES 49 


order that a national judge of the other party may take his 
place. In the event, however, that neither party has a national 
on the Special Chamber, no provision is made for substituting 
national judges for the ordinary judges. 


67. Equality of national judges is not maintained when 
the Court renders an advisory opinion: The Advisory 
Committee of Jurists was of the opinion that the Court should 
deliver an advisory opinion in the same manner as though the 
case had actually been brought before it; “that is to say a judge 
of the nationality of each of the contesting parties must be 
allowed to take his place on the bench, if the parties request 
it, and the parties must be allowed to present all arguments and 
proofs just as in a case brought directly before the Court by 
them.’ * The Court has followed this principle with respect 
to arguments, proofs, pleadings and appearance of counsel. 
There exist no rules governing the presence of national judges 
under advisory procedure; but no party, under the regulations 
adopted by the Court, has been accorded the right to name a 
national judge. In the matter of Eastern Carelia, neither 
Russia nor Finland had a representative on the Court; in the 
matter of the German Settlers, neither Poland nor Germany 
had a national on the Court; in the matter of Jaworzina, neither 
Poland nor Czechoslovakia had a national on the Court; in the 
matter of the Monastery of Saint Naoum, neither the Serb- 
Croat-Slovene State nor Albania was represented;° in the 
matter of the exchange of Greek and Turkish populations neither 
party concerned had a national on the Court; nor did Poland 
and the Free State of Danzig in the matter of the Danzig 
Postal Service. In the questions concerning the Iraq Boundary, 
submitted by the Council for an advisory opinion on September 


4 Records of the First Assembly, Committees, Vol. I, p. 451. 
5 The national deputy judge of the Serb-Croat-Slovene State, M. 


Yovanovitch, did not sit in this case. 


50 THE SENATE AND THE COURT 


17th, 1925, Great Britain will have a national judge but Turkey 
has no national. Also, Great Britain and France each retained 
their national judge in the matter of the Tunis and Morocco 
Nationality Decrees. 


68. The principle of national judges as applied to ad- 
visory opinions favors the great Powers: Notwithstanding 
the interposition of League machinery, maintaining the theory 
that members of the Court are elected by a community of states 
and are not selected by individual states, the retention of the 
system of national judges tends to give an advantage to the 
great Powers. It is a sound inference that the permanent 
members of the Council of the League will have permanently a 
national on the Court. Therefore, no case involving these 
Powers and an ex-enemy state—that is to say, questions arising 
under the Peace Treaties—can arise in which these Powers 
have not the advantage against the one national judge of the 
ex-enemy state. Also, no request for an advisory opinion 
affecting the interests of the great Powers may be framed by 
the Council without their consent nor may such opinion be ren- 
dered by the Court without the participation of the national 
judges belonging to these great Powers; whereas opinions af- 
fecting the interests of the small Powers may be framed by the 
Council without their particular consent and the Court may 
render such opinions without their having any national judge 
on the Court. It is a practice of unequal representation which 
could be remedied by an amendment of Rule 71 without altera- 
tion of the Statute, thereby recognizing the principle laid down 
by the Advisory Committee of Jurists. 


69. The adherence of the United States should be con- 
ditioned upon equal representation under all circumstances: 
The tendency to submit legal questions concerning actual dis- 
putes, thereby involving rights of property, liberty, citizen- 


NATIONAL JUDGES 51 


ship and other valuable rights, to the Court for an advisory 
opinion, almost to the exclusion of judicial decisions, and the 
inequality of representation in the Chamber of Summary Pro- 
cedure, raises a pertinent question with respect to adherence 
by the United States, namely, whether it should not propose, at 
the time of its adherence as a condition precedent to its signa- 
ture becoming effective that the Statute should be amended 
to provide that no dispute or question shall be determined by 
the Court in advisory proceedings unless the states affected are 
equal before the Court in the matter of having a national judge 
on the bench during such proceedings; and that this principle 
shall apply to proceedings in the Chamber of Summary Pro- 
cedure. 


CHAPTER VI 
RIGHT OF ACCESS 


70. By accessibility of the Court is meant solely the use 
of the Court: Access to the Court is to be distinguished 
from the act of adherence and, also, from membership in the 
Court which is confined to judges. The Court is accessible to 
parties in one of two ways: (1) Direct access wherein the 
states appear as parties in litigious proceedings and request a 
judgment. (2) Indirect access wherein states desiring advice 
in litigious matters request the Council to obtain an advisory 
opinion from the Court. 


71. The Court is directly accessible to any state or mem- 
ber of the League: This provision enables the British Domin- 
ions which have not attained the status of states, but which are 
members of the League, to appear as parties. The component 
parts of the British Empire may, therefore, appear as con- 
testants against each other before the Court. This right would, 
however, appear to be subject to different interpretations. 
When the Irish Free State registered the treaty concluded be- 
tween itself and Great Britain on July 11th, 1924, with the 
League of Nations, the British Government, in a letter, dated 
November 27th, 1924, notified the League that it had con- 
sistently taken the view that neither the Covenant nor any 
convention concluded under the auspices of the League is in- 
tended to govern relations inter se of the various parts of the 
British Commonwealth. Therefore, it was contended, the 
treaty did not come within the provisions of Article 18 of the 
Covenant, which Article states that a treaty is not binding until 

52 


RIGHT OF ACCESS 53 


registered. Since the Statute is a convention concluded under 
the auspices of the League, the British view may be found to 
be opposed to the submission to the Court of disputes arising 
within the Empire. 


72. The Court is directly and unconditionally accessible 
to members of the League as a matter of right: Such 
members may resort to the Court through requests to the 
Council for an advisory opinion; through the submission of 
controversies by agreement; and through the submission 
of any matter which they embody in a treaty or convention in 
force. 


73. Right of unconditional direct access may be lost 
through withdrawal from the League: Members of the 
\League, not mentioned in the Annex to the Covenant, who 
withdraw from the League, would lose their right of uncondi- 
tional access, since such access is conditioned upon membership. 
Such would be the position of Austria and Hungary; and of 
Germany or Russia should they join the League and later 
withdraw. It will be the position of Costa Rica when its 
request for withdrawal is accepted by the League. But mem- 
ber states, which are mentioned in the Annex to the Covenant, 
withdrawing from the League, would retain the unconditional 
right of direct access. Such will be the position of Argentina 
when the League finally accepts its withdrawal. 


74. Only states may have direct access to the Court as 
parties: The Advisory Committee of Jurists was unanimously 
of the opinion that parties before the Court could not be private 
individuals, for the following main reasons: (1) Were any 
parties, other than states, to appear before the Court, national 
minorities might appeal directly to the Court. The protection of 
minorities is the right of states and their sovereignty should not 


54 THE SENATE AND THE COURT 


be imperilled by permitting such minorities to go directly be- 
fore the Court. (2) The duty of a state being to protect its 
subjects, it followed that a subject having a claim against a 
state would have the support of his government which would 
take up the matter on his behalf. (3) The use of the word 
“international” in Article 14 of the Covenant meant that “the 
Court could deal with questions affecting private interests but 
only if the government of the country of which the individual 
was the subject, made them international by adopting them as 
its own.” * (4) The right of private individuals to appear 
before the Court implied that a conflict between two subjects 
of the same state might be international if, for example, it dealt 
with property located in a foreign state, and this was not the 
interpretation meant by the Covenant. (5) The question of 
double nationality might arise wherein the individual might 
desire to have the Court decide of which country he was a 
citizen. A decision by the Court would raise the question 
whether a state should amend its domestic law relating to 
citizenship. To avoid such embarrassment, private individuals 
should not have access to the Court. This recommendation was 
in accordance with the Hague Convention of 1907 and was of 
an arbitral rather than a judicial nature. The Third Committee 
of the First Assembly sustained this view and rejected the pro- 
posal that the International Labor Office should be permitted 
to appear as a party.’ 


1P. C. of I. J. Pub., Proceedings of the Committee, p. 207. ‘This 
view was held by Mr. Root, who also pointed out that the majority 
of cases before the Court of Arbitration related to private interests, 
supported by the respective states. Lord Phillimore (Great Britain) 
based an interpretation of “international,” similar to Mr. Root’s, upon 
Articles 18 and 19 of the Covenant, indicating the extent to which the 
provisions of the Covenant underlie the structure of the Court. Articles 
18 and 19 concern the registration and the review of treaties. 

2See Chapter XII on Jurisdiction with Respect to International 
Labor. 


RIGHT OF ACCESS 55 


“5. States under a mandate, a protectorate or a guardian 
appear tu have no direct access to the Court: In such 
circumstances, the control of the foreign relations of the state 
so placed is vested in the mandatory power or in the guardian 
and the consent of such mandatory state or guardian is requisite 
to the submission of any such dispute to the Court. For this 
reason the self-governing A mandates, Syria, Palestine and 
Iraq, have access to the Court only through their mandatories. 
Egypt may not have access to the Court except through the 
British Government; the Saar Territory would not have access 
except through the French Government which is in control of 
its foreign affairs; and the Danzig Free State is similarly con- 
ditioned with respect to Poland. It is, therefore, a mistake 
to assume that the Court is accessible to all states that may 
desire to appear as parties; for even though the parties might 
agree to submit their differences to the Court, the consent 
of the mandatory, guardian or protector would still be neces- 
sary. 


“6. States may have direct access to the Court on behalf 
of a private person if such person is one over whom the 
state has the right of protection: This principle was upheld 
in the matter of the Mavrommatis Palestine Concessions 
wherein the cause of a Greek citizen against Great Britain was 
successfully maintained. Whether a state may appear on be- 
half of persons over whom it has no right of protection, as 
for instance a minority, would depend upon other procedure, 
as in the Minority Treaties. In any event, this is a question 
for the Court to decide whenever its jurisdiction is called into 
question. 


77. The Court is directly accessible to states mentioned 
in the Annex to the Covenant: The United States belongs 
to this group and may use the Court as a matter of special 
privilege. The reasons given for the exceptional position of 


56 THE SENATE AND THE COURT 


the United States were stated by the Advisory Committee of 
Jurists to be that “owing, to exceptional circumstances, which 
everyone believes to be only temporary, the United States of 
America which are mentioned in the Treaty of Versailles among 
the original members of the League of Nations, have not yet 
joined the League; they have signed the Covenant, but have not 
yet ratified it, and are therefore in an exceptional position. 
Such a situation calls for special treatment; the Court is to be 
open to them subject only to the condition that the provisions 
of Article 17 [of the Covenant] are complied with, but in 
their case this condition will certainly be confined to taking a 
share in the general expenses of administration.” * Should 
it desire to have direct access to the Court, the United 
States need make no Declaration accepting obligations under the 
Covenant. It would be required only to contribute to the 
expenses of the Court in such sum as the Court might deter- 
mine. 


78. States not mentioned in the Annex to the Covenant 
have direct access to the Court under conditions prescribed 
by the Council: These regulations require states to make a 
Declaration accepting the jurisdiction of the Court in accord- 
ance with the Covenant.‘ 


8P.C. of I. J. Pub. Proceedings of the Committee, p. 724. 
Text of Regulations: 

1. The Permanent Court of International Justice shall be open 
to a State which is not a member of the League of Nations or 
mentioned in the Annex to the Covenant of the League, upon the 
following condition, namely: that such State shall previously have 
deposited with the Registrar of the Court a declaration by which 
it accepts the jurisdiction of the Court, in accordance with the 
Covenant of the League of Nations and with the terms and subject 
to the conditions of the Statute and Rules of Procedure of the 
Court, and undertakes to carry out in full good faith the decision 
or decisions of the Court and not to resort to war against a State 
complying therewith. 


RIGHT OF ACCESS 57 


79. The Declaration referred to may be particular for a 
case or general for all disputes: In either case the non- 
member state agrees to accept the obligations provided for in 
Articles 12 and 13 of the Covenant, namely, that it will carry 
out the decision in full good faith and will not resort to war 
with a state complying therewith. The non-member state, 
through this agreement, incurs the liability to sanctions con- 


2. Such declaration may be either particular or general. 

A particular declaration is one accepting the jurisdiction of the 
Court in respect only of a particular dispute or disputes which have 
already arisen. 

A general declaration is one accepting the jurisdiction generally 
in respect of all disputes, or of a particular class or classes of dis- 
putes which have already arisen or which may arise in the future. 

A State, in making such a general declaration, may accept the 
jurisdiction of the Court as compulsory, ipso facto, and without 
special convention, in conformity with Article 36 of the Statute of 
the Court; but such acceptance may not, without special convention, 
be relied upon as regards members of the League of Nations or 
States mentioned in the Annex to the Covenant which have signed 
or may hereafter sign the ‘optional clause’ provided for by the 
additional protocol of December 16th, 1920. 

3. The original declarations made under the terms of this resolution 
shall be kept in the custody of the Registrar of the Court. Certified 
true copies thereof shall be transmitted, in accordance with the 
practice of the Court, to all members of the League of Nations and 
States mentioned in the Annex to the Covenant, and to such other 
States as the Court may determine, and to the Secretary-General of 
the League of Nations. 

4. The Council of the League of Nations reserves the right to 
rescind or amend this resolution by a resolution which shall be com- 
municated to the Court; and on the receipt of such communication by 
the Registrar of the Court, and to the extent determined by the 
new resolution, existing declarations shall cease to be effective except 
in regard to disputes which are already before the Court. 

5. All questions as to the validity or the effect of a declaration 
made under the terms of this resolution shall be decided by the 
Court. (Official Journal, June, 1922, p. 609.) 


58 THE SENATE AND THE COURT 


tained in Article 16 of the Covenant. The original Declaration 
is deposited with the Court and copies are filed with the League. 
Questions as to the validity or effect of a Declaration are de- 
termined by the Court. No provision is made for the with- 
drawal of a general Declaration. A minority of the League, 
namely ten states assembled in the Council, may thus exercise 
the sole right of determining the conditions under which states, 
non-members of the League and not mentioned in the Annex 
to the Covenant, shall use the Court. 


80. The Council alone has the right to change the provi- 
sions of a Declaration: Any changes are to be transmitted 
to the Court and they become effective for all future disputes. 
Changes do not apply to matters already before the Court; and 
they are subject to two restrictions: they may not place a state 
in a position of inequality before the Court; and they do not 
affect the terms of the special provisions contained in treaties 
in force. All questions as to validity or interpretation of a 
Declaration are to be decided by the Court. 


81. The right of the Council to make regulations is based 
on the theory of protection of members of the League: 
The Report of the Advisory Committee of Jurists asserts that 
the right of the Council “is based both on principles and exist- 
ing provisions: on principles because it is to the general in- 
terest of the peace of the world to extend the development of 
the international jurisdiction and to enlarge the Court’s sphere 
of action; on existing provisions because Article 17 of the 
Covenant itself indicates that the methods created by the Cov- 
enant for the settlement of disputes may be extended to apply to 
states which are not members of the League.” *® This theory 
finds particular expression in the provision relating to the op- 
tional clause. Should a non-member state, in making the Dec- 
laration, accept the optional clause, any other signatory could 


5P.C. of I. J. Pub. Proceedings of the Committee, p. 725. 


RIGHT OF ACCESS 59 


summon such non-member before the Court; but the non- 
member could not summon any other signatory (were it a mem- 
ber of the League) without a special agreement. It is hardly 
necessary to point out that no non-member state has voluntarily 
recognized a provision which grants all of the rights to the 
other party. 


82. States may have direct access to the Court by reason 
of provisions contained in treaties: This right is granted by 
Article 35 of the Statute and is also specifically provided for 
in Article 36. Illustrations occur under Parts XII and XIII of 
the Treaty of Versailles relating respectively to labor and to 
transit; no conditions may be imposed by the Council, and no 
obligations under the Covenant are incurred; nor is member- 
ship in the League or mention in the Annex to the Covenant es- 
sential for access to the Court. Therefore, when Germany was 
summoned by the Allied Powers under Article 386 of the 
Treaty of Versailles in the matter of the S. S. “Wimbledon,” 
no other provision was applicable. It appears that any non- 
member state may thus avoid making a Declaration accepting 
the Covenant, provided there is an agreement for submission 
contained in a treaty in force. One non-member state of the 
League, Germany, has voluntarily and directly resorted to the 
Court under the terms of a treaty, having requested a judg- 
ment under Article 23 of the Germano-Polish Convention con- 
cerning Upper Silesia. A preliminary question raised by Po- 
land concerning the competence of the Court, was settled in 
favor of the Court and the determination of the merits of the 
case is now pending.® 


83. Direct access may be had to the Court for the purpose 
of executing the terms of a treaty: In such instances no 
conditions attach to resort to the Court other than those con- 


6 For summary of opinions and judgments, see Annex I. 


60 THE SENATE AND THE COURT 


tained in the Treaty in question. ‘Illustrations occur in the 
matter of the application of the Turkish Government to the 
Court to nominate counsellors in accordance with the Declara- 
tion made by Turkey in the Lausanne Treaty; and in the ap- 
plication to the President of the Court to appoint arbitrators 
under provisions in treaties conferring such authority." 


84. Whether states engaged in a war may have direct 
access to the Court has not been determined: It has been 
observed that states engaged in acts of war may, at the same 
time, be engaged in proceedings before the Council. The cap- 
ture of the Lithuanian capital of Vilna by Poland furnishes an 
instance in point. The negotiations before the Council were 
not broken off by reason of the act of war. Also, that a state 
of war and of arbitral proceedings may co-exist was demon- 
strated in the matter of Fiume when Italian irregulars con- 
tinued their campaign while negotiations for arbitration were 
proceeding. There appears to be no general rule which pro- 
hibits a state from making war and submitting points for settle- 
ment to a court at the same time. 


8s. Indirect access to the Court by parties to a dispute 
may be had through the Council or Assembly: By virtue 
of Article 14 of the Covenant these two branches of the League 
possess the exclusive right to request advisory opinions from 
the Court. Neither branch may appear as a party but the 
Secretary-General may appear before the Court for the purpose 
of giving information. Thus far he has not been requested to 
appear. 


86. Access in non-litigious matters may be had by the 
Council or Assembly: The scope of Article 14 is sufficiently 
broad to enable the Council or Assembly to submit to the Court 


™See Chapter IX on Jurisdiction over Non-Judicial matters. 


RIGHT OF ACCESS 61 


any questions.. Such questions may, accordingly, include leg- 
islation pending before the Assembly; also interpretations of 
the Covenant. Neither the Council nor the Assembly has 
made use of this right; on the contrary, the tendency is to re- 
sort to committees of jurists for the settlement of legal points 
in connection with legislation or interpretation of the consti- 
tution of the League. 


87. Right of access by the Council for purposes of advi- 
sory opinions may bring international institutions before 
the Court as defendants: The practice of advisory opinions, 
following the same procedure as that prescribed for judgments 
of the Court, makes it necessary for organizations or individ- 
uals whose acts are called into question to appear as defendants 
in fact although they may not be technically so regarded. In- 
stances have occurred in the advisory proceedings concerning 
agricultural labor wherein the International Labor Office was 
called upon to defend the conduct of its affairs. It is, there- 
fore, possible through the access granted to the Council to call 
into question the acts of international organizations. 


88. The Court is accessible at all times: This condition 
is facilitated by a permanent personnel; by the requirement that 
the President and Registrar shall reside at the seat of the Court; 
by the provisions that the President may summon an extraor- 
dinary session whenever it seems necessary; and by the fact 
that the Chamber of Summary Procedure may be called into — 
being whenever the parties desire a speedy settlement of their 
controversy. 


89. Disputes as to accessibility are decided by the Court: 
Article 36 of the Statute provides that “in the event of a dis- 
pute as to whether the Court has jurisdiction, the matter shall 
be settled by the decision of the Court.” Whether this clause 
applies only to the optional clause (paragraph 2 of Article 36) 


62 THE SENATE AND THE COURT 


or whether it applies also to cases and matters contained in 
treaties (paragraph 1 of Article 36) is not entirely clear; and 
it will be for the Court at some future time to determine the 
precise question. But in view of the liberal construction given 
by the Court to its competence in the matter of advisory opin- 
ions; and in view of its determination to accept the duty to 
nominate counsellors for Turkey under paragraph 1 of Article 
36, it is permissible to assume that the Court will determine 
by majority vote all questions of who shall use the Court and 
under what conditions unless it is expressly reserved by the 
Statute or by the parties in the instrument under which the 
matter is submitted. The jurisdiction of the Court has been 
called into question by one of the parties in the following in- 
stances: (1) In the matter of Eastern Carelia, Russia, one of 
the parties, declined to appear and the Court held it had no 
jurisdiction. This incident establishes the principle that the 
right of the Council to summon a non-member state may be suc- 
cessfully questioned before the Court. (2) The jurisdiction 
of the Court was questioned by Great Britain, the defendant 
party, in the matter of the Mavrommatis Palestine Concessions 
on the ground that the complaint concerned a private citizen and 
that diplomatic negotiations between the two countries had not 
been exhausted. The case arose under the Mandates and under 
the Concessions Protocol of the Lausanne Treaty. The Court 
sustained its jurisdiction. (3) The jurisdiction of the Court 
was questioned in the matter of the German interests in Upper 
Silesia, wherein Poland opposed the Court’s taking jurisdiction 
on the ground that the matter was governed by Article 256 of 
the Treaty of Versailles and not by the section of the Germano- 
Polish convention relating to expropriation ; and that the former 
conferred no jurisdiction upon the Court. The Court has sus- 
tained its jurisdiction and has under consideration a determina- 
tion of the merits of the case.® 


8 For summary of opinions and judgments, see Annex I. 


RIGHT OF ACCESS 63 


90. Proposals for adherence of the United States contain 
no references to the right of access to the Court: The pres- 
ent position of the United States, with respect to access to 
the Court, is highly favored. It may resort to the Court solely 
upon the conditions set forth in the Statute and it incurs no 
obligations under the Covenant such as attach to members of 
the League and other non-member states not mentioned in the 
Annex. No alteration is proposed with respect to the distinc- 
tions made between member and non-member states concerning 
the conditions under which they may have direct access to 
the Court; and with respect to the right of the Council rather 
than of the Court, to determine the conditions of its use by non- 
members. The practice, however, of indirect access to the 
Court for advice in litigious matters has been referred to in 
Senator Swanson’s Resolution but only for the purpose of 
making inapplicable to the United States any advisory opinion 
affecting its interest, in the request for which the United 
States does not concur. The absence of a more specific policy 
raises the question whether the United States intends to follow 
the policy of assigning to the Council the right to be the sole 
judge in the future as to the manner in which non-members of 
the League may use the Court or whether it desires to be 
consulted with respect to any changes to be made in the rules. 
For, however acceptable the present rules may be, there is at 
present no control by the majority of signatory states over the 
rules to be adopted nor can there be until such time as the 
Assembly may revise the Statute. 


GEA Bava 
OBLIGATORY JURISDICTION UNDER THE STATUTE 


g1. The jurisdiction of the Court is in principle based 
upon agreement between the parties: Article 14 of the 
Covenant fixes this jurisdiction as voluntary. This Article, 
even in its earliest drafts wherein arbitration was mentioned, 
did not intend to confer any measure of obligatory jurisdiction 
upon the Court whereby one party could summon another party 
before the Court without its consent.1. The final draft provides 
that the Court shall be competent “to hear and determine any 
dispute of an international character which the parties thereto 
submit to it.’ This Article definitely fixes the character of 
the general jurisdiction of the Court to be that of voluntary 
submission of disputes requiring the consent of both parties. 


92. The Advisory Committee of Jurists undertook to 
broaden the scope of Article 14 to include a measure of 
obligatory jurisdiction: The Committee proposed that be- 
tween members of the League the Court should have juris- 
diction (without any special convention giving the Court such 
jurisdiction) to hear and determine cases of a legal nature with 
respect to: (a) The interpretation of a treaty; (b) any question 
of international law; (c) the existence of any fact which, if 
established, would constitute a breach of an international obliga- 


1 The first published draft provided that the Court shall “be com- 
petent to hear and determine any matter which the parties recognize 
as suitable for submission to it for arbitration under the foregoing 
Article.” This draft definitely established the relation of Article 14 
to the arbitral proceedings defined in Article 13 of the Covenant. 

64 


OBLIGATORY JURISDICTION 65 


tion; (d) the nature and extent of reparation to be made for the 
breach of an international obligation; and (e) the interpretation 
of a sentence passed by the Court. In the event that a question 
arose whether a dispute submitted by a party came within any 
of these categories it was to be settled by the Court. 


93. The opposition of the great Powers defeated the 
liberal interpretation of Article 14: After due consideration 
of the proposal contained in the draft Scheme, the Council 
proposed a substitute to the effect that, without prejudice to the 
right of the parties according to Article 12 of the Covenant 
to submit disputes between them either to judicial settlement 
or arbitration or to inquiry by the Council, the Court itself 
shall have jurisdiction, and this without any special agreement 
giving it jurisdiction, to hear and determine disputes, the settle- 
ment of which is by treaties in force entrusted to the tribunal 
instituted by the League of Nations. The reasons given for 
the proposed substitution included the following: (1) The 
Advisory Committee of Jurists had gone beyond the provisions 
of Article 14 of the Covenant and the framers of that article 
never intended that one party to a dispute should compel an- 
other party to go before the tribunal.2 (2) A decision of the 
Court was being substituted for a decision which the Council 
should take on the question whether diplomatic methods of 
settlement had been exhausted. (3) A decision of the Court 
was being substituted for the free choice allowed to the parties 
by the Covenant, with regard to the question whether they 
would lay their dispute before the Court or another tribunal ; 
and the proposal seemed to involve a modification of Articles 
12 and 13 of the Covenant which was not then deemed to be 
desirable.® : 

2 Note by Lord Balfour; for text, see Records of the First Assembly, 


Committees, Vol. I, p. 511. 
8 Statement by M. Bourgeois, rapporteur; for text, see Records of the 


First Assembly, Committees, Vol. I, p. 460. 


66 THE SENATE AND THE COURT 


94. The substitute proposal of the great Powers was op- 
posed by the small states and the result was a compromise 
on the optional clause: Since unanimity was necessary for 
the adoption of the draft Scheme by the Assembly and since 
there was opposition to submitting the Scheme to members of 
the League without its formal adoption by the Assembly, it was 
necessary to reach a compromise satisfactory to both great and 
small Powers if the Court was to become a reality. The com- 
promise reached was that the principle of obligatory jurisdiction 
‘should be incorporated in the Statute, but in a form not to be 
binding upon signatories to the Statute. For this purpose, 
it was proposed to have two Protocols of Signature—one for 
the Court and a Special Protocol for obligatory jurisdiction. 
This special Protocol is annexed to the Protocol of Signature 
and may be signed by states at the time of their adherence to 
the Court or at a later date. Signature is, however, entirely 
optional; hence the name of the clause. The optional clause 
forms part of Article 36 of the Statute, but is without effect 
unless signed separately under the Special Protocol, and it is 
limited in operation among its signatories. 


9s. Whatever obligatory jurisdiction the Court possesses 
under the Statute is derived from the optional clause: It 
provides that members of the League and states mentioned in 
the Annex to the Covenant may, either when signing or ratify- 
ing the Protocol establishing the Court or at a later moment, 
declare that they recognize as compulsory ipso facto and with- 
out special agreement, in relation to any other member or state 
accepting the same obligation, the jurisdiction of the Court in 
all or any of the classes of legal disputes concerning; (a) The 
interpretation of a treaty; (b) any question of international 
law; (c) the existence of any fact which, if established, would 
constitute a breach of an international obligation; and (d) the 
nature and extent of reparation to be made for a breach of an 


OBLIGATORY JURISDICTION 67 


international obligation.4 These classifications are identical 
with Article 13 of the Covenant and with those proposed by 
the Advisory Committee of Jurists in the draft Scheme except 
that the interpretation of a sentence by the Court is omitted. 
Provision for such interpretation is made later under Article 
60 of the Statute, which gives the Court authority to construe 
its own decisions. 


96. The Court decides when it has jurisdiction in the 
foregoing classes of legal disputes: In this respect the op- 
tional clause constitutes an advance over arbitral agreements. 
According to arbitral practice, if a convention establishes arbi- 
tration without reservations for certain cases or classes of ques- 
tions, each of the parties has the right of recourse to the 
tribunal named. If, however, there are reservations, the parties 
must reach an agreement as to whether these fall within the 
terms of the convention. Under the optional clause the Court 
decides the question. 


97. The optional clause extends the operation of the prin- 
ciple of Article 13 of the Covenant to the Court: Under 
Article 13, members of the League agree that they will submit 
to arbitration or judicial decision disputes which come within 
the specified category whenever such disputes cannot be settled 
by diplomacy. The optional clause repeats these same cate- 
gories for states which may intend to resort to the Court. The 
principle established is that the powers of the Court, under the 
optional clause, are identical with the powers of the Council 


4The text of the Special Protocol of Signature for the optional 
clause follows: 

The undersigned, being duly authorized thereto, further declare, 
on behalf of their Government, that, from this date, they accept as 
compulsory ipso facto and without special convention, the jurisdiction 
of the Court in conformity with Article 36, paragraph 2, of the 
Statute of the Court, under the following conditions: 


68 THE SENATE AND THE COURT 


or arbitral tribunals under the Covenant; the Court is not 
permitted to assume a favored position in the settlement of con- 
troversies. In this respect the optional clause is in entire agree- 
ment with the view expressed by the Council when rejecting 
obligatory jurisdiction. 


98. The optional clause may be accepted unconditionally 
or with reservations: ‘This rule applies to members of the 
League and states mentioned in the Annex but not to other non- 
member states not mentioned in the Annex to the Covenant. 
The reservations hitherto made concern chiefly reciprocity and 
time.> If a state signs the clause unconditionally, that is, with- 
out specifying reciprocity, it may invoke the jurisdiction of the 
Court only with respect to other signatories, but may, itself, be 
summoned by any state which has access to the Court. 


99. Rules adopted by the Council for non-member states 
offer an exception to the rule of reciprocity: These regula- 
tions, drawn up by the Council for the use of the Court by 
states not members of the League nor mentioned in the Annex 
to the Covenant, provide that such states, when making a 
declaration accepting the jurisdiction of the Court, may also 
accept the optional clause. This, however, does not mean that 
such states may adhere to the Protocol of Signature; on the 
contrary, this acceptance gives them no rights of reciprocity 
whatsoever toward states members of the League or mentioned 
in the Annex to the Covenant, which may be signatories to the 
optional clause. Should a non-member state accept the optional 
clause under this Declaration, any other signatory could request 
the Court to summon such state; but the non-member state 


5 The right to make such reservations as to time and reciprocity has 
been used to a great extent; of the twenty-four signatory states twenty- 
three have made reservations of reciprocity, and of these thirteen have 
signed for five years, and two for fifteen years. 

6 For text of regulations, see p. 56. 


OBLIGATORY JURISDICTION 69 


itself would possess no such equivalent right to summon another 
signatory which is a member of the League, without entering 
into a special agreement. 


100. The optional clause has not been ratified by any 
great Power: The signatories to the optional clause include 
the following states, under the conditions named:*? Austria: 
On condition of reciprocity for a period of five years; ex- 
piration on March 14th, 1927. Belgium: On condition of 
reciprocity for a period of fifteen years and whenever the 
parties have not agreed to resort to other methods of pacific 
settlement ; not yet ratified. Brazil: For a period of five years, 
on condition of reciprocity and when two powers having per- 
manent seats on the Council sign. The signature is not in 
effect. Bulgaria: On condition of reciprocity. China: On 
condition of reciprocity for a period of five years; expiration 
on May 13th, 1927. Costa Rica: On condition of reciprocity. 
Denmark: On condition of reciprocity for a period of five years; 
expiration on June 13th, 1926. Dominican Republic: On con- 
dition of reciprocity; not yet ratified. Esthonia: On condition 
of reciprocity for a period of five years, expiration on May 2d, 
1928, and whenever the parties have not agreed upon other meth- 
ods. Finland: On condition of reciprocity for a period of five 
years ; expiration on April 6th, 1927. France: For a period of 
fifteen years, on condition of reciprocity ; with power of denun- 
ciation if the Protocol of Arbitration, Security and Reduction of 
Armaments lapses ; and on condition that one of the parties may 
bring the dispute before the Council and during such proceedings 
neither party may proceed against the other before the Court. 
The Protocol, not having come into effect and the ratifica- 
tion not having been made, the signature is apparently not in 

7 The computations concerning the date of expiration are based on 


the date of ratification where the signature was subject to such ratifica- 
tion; otherwise on the date of signature. 


70 THE SENATE AND THE COURT 


effect. Haiti: Unconditional. Lalvia: On condition of reci- 
procity for five years; expiration on February 12th, 1929. 
Liberia: On condition of reciprocity, not yet ratified. Lithu- 
ania: On condition of reciprocity, for a period of five years, 
expiration on May 16th, 1927. Luxemburg: On condition of 
reciprocity for a period of five years, not yet ratified. Nether- 
lands: On condition of reciprocity, for a period of five years 
and whenever the parties have not agreed to resort to other 
means of friendly settlement; expiration on August 6th, 1926. 
Norway: On condition of reciprocity, for a period of five years ; 
expiration on October 3rd, 1926. Panama: On condition of 
reciprocity. Portugal: On condition of reciprocity. Salvador: 
On condition of reciprocity. Sweden: On condition of rect- 
procity for a period of five years; expiration on August 16th, 
1926. Switzerland: On condition of reciprocity for a period of 
five years; expiration on July 25th, 1926. Uruguay: On con- 
dition of reciprocity. 


ror. The measure of jurisdiction conferred by the op- 
tional clause has been negligible: This is due largely to the 
distribution and character of the signatories. In Europe, the 
optional clause is operative as between Austria, Bulgaria, Den- 


8 The text of the French reservation follows: 

I hereby declare that, subject to ratification, the French Govern- 
ment gives its adhesion to the optional clause of Article 36, paragraph 
2 of the Statute of the Court, on the condition of reciprocity, for 
a period of fifteen years, with power of denunciation, should the 
Protocol on Arbitration, Security and Reduction of Armaments signed 
this day lapse, and, further, subject to the observations made at the 
First Committee of the Fifth Assembly, according to the terms of 
which one of the parties to the dispute may bring the said dispute 
before the Council of the League of Nations for the purpose of the 
pacific settlement laid down in paragraph 3 of Article 15 of the 
Covenant, and during such proceedings neither party may take pro- 
ceedings against the other before the Court. (Official Journal, No- 


vember, 1924, p. 1685.) 


OBLIGATORY JURISDICTION 71 


mark, Esthonia, Finland, Latvia, Lithuania, Netherlands, Nor- 
way, Portugal, Sweden and Switzerland. It is inoperative for 
Albania, Belgium, the British Empire, Czechoslovakia, France, 
Greece, Hungary, Italy, Luxemburg, Poland, Roumania, the 
Serb-Croat-Slovene State and Spain. The following states 
are not eligible to signature until they join the League: 
Germany, Russia and Turkey. In North America, the optional 
clause is not susceptible to operation, there being no signatory. 
In South America, it is not operative there being but one sig- 
nature in effect—that of Uruguay. In Central America it 
may become operative, there being five signatories.’ It is 
not susceptible to operation among Asiatic countries, there be- 
ing but one signatory, China. It is not operative in Africa, 
there being but one—unratified—signature, that of Liberia. 
No disputes have been submitted under the optional clause 
for the general reasons that no alleged war-making state has 
signed; the condition of reciprocity constitutes a limitation ; 
and the geographic location of the signatories is not such as 
to lead to disputes between the signatories, with the exception 
of the Baltic and the Central American groups. 


102. The impotence of the optional clause is indicated by 
the forcible settlement of disputes: Had the members of 
the League adopted the proposal of the Advisory Committee 
of Jurists, Lithuania could have summoned Poland before the 
Court in the matter of Vilna, instead of being denied a judicial 
hearing, which denial perpetuated a state of war in that region ; 
Albania could have brought the Serb-Croat-Slovene State into 
Court over the question of the invasion of the Albanian 
boundaries; the Serb-Croat-Slovene State could have sum- 


9 With the withdrawal of Costa Rica from the League, its adherence 
to the Court and signature to the optional clause appear to become 
ineffective, Costa Rica not being mentioned in the Annex to the 
Covenant. For conditions of withdrawal of states, see p. 10. 


72 THE SENATE AND THE COURT 


moned Italy in the matter of Fiume; Hungary could have 
summoned Roumania in the matter of the optants in Transyl- 
vania; and Great Britain could have obtained an interpretation 
of the reparation clauses of the Treaty of Versailles, thereby 
possibly preventing the occupation of the Ruhr. Each of 
these questions involved an interpretation of a treaty. 


103. The optional clause is sufficiently elastic to permit 
of any reservation which states deem necessary: This view 
was taken by the Fifth Assembly when it adopted the Geneva 
Protocol, together with the General Report prepared by M. 
Politis and M. Bénés. It is in accordance with the terms of 
Article 13 of the Covenant wherein the states may decide 
what is generally suitable for arbitration. The Fifth Assembly 
indicated the extent to which the Statute is intended to conform 
to the provisions of the Covenant and wherein the powers of 
the Court are not to exceed those of the Council. The con- 
clusion is embodied in Article 3 of the Protocol;*® and is 
expounded in the General Report, which lays down the follow- 
ing principles: The terms of the optional clause are elastic 
beyond the reservations specified in the text of the Court 
Statute, namely as to time and reciprocity. Since it is open to 
states to accept the obligatory jurisdiction of the Court with 
respect to certain classes of disputes mentioned and not to ac- 


10 Paragraph 1 of Article 3 of the Protocol follows: 

The signatory states undertake to recognize as compulsory, ipso 
facto, and without special agreement, the jurisdiction of the Per- 
manent Court of International Justice in the cases covered by 
paragraph 2 of Article 36 of the Statute of the Court, but without 
prejudice to the right of any State, when acceding to the special 
protocol provided for in the said Article and opened for signature 
on December 16th, 1920, to make reservations compatible with the 
said clause. 

The text of Resolution 2, passed by the Fifth Assembly, interpreted 
the phrase “reservations compatible with said clause” to mean reserva- 
tions which states regard as “indispensable.” 


OBLIGATORY JURISDICTION 73 


cept it in respect to other classes of disputes, it makes it possible 
for them to accept such jurisdiction in respect of a portion only 
of one of those classes. If the maximum is optional so 1s 
the minimum. In giving the undertaking, states are, there- 
fore, free to declare that the optional clause will not be re- 
garded as operative in cases where they consider obligatory 
jurisdiction to be inadvisable. This interpretation would have 
definitely removed from the Court its right to decide when it 
had jurisdiction and what reservations were compatible with 
the optional clause; and without formal amendment it would 
have fundamentally affected the application of the Statute. 
The Protocol indicated that the precise stage at which a dis- 
pute may be laid before the Court may be made the subject 
of a reservation. In the event, for instance, that a state made 
a reservation to the effect that a question submitted first to 
the Council should not be submitted to the Court while the 
Council was exercising jurisdiction, the Court would be de- 
prived of its jurisdiction if one of the parties had appealed 
first to the Council. The effect of this interpretation would be 
the following: The Statute contains an optional clause which the 
signature of a state makes obligatory with respect to other states 
accepting it. Article 3 of the Geneva Protocol would have 
made the optional clause obligatory on all states signing such 
Protocol: but the report accompanying such Protocol would 
have made acceptance optional through an unlimited range of 
reservations. The conditions under which the Court could ex- 
ercise jurisdiction under the Protocol would be determined only 
after the puzzle of the various reservations had been solved, 


104. The elasticity of the optional clause, as interpreted 
by the Fifth Assembly, is the subject of divided opinion: 
France, in signing the optional clause with the reservations 
hereinbefore noted, accepted the interpretation of the Assembly 
and made a reservation, not provided for under the Statute 


74. THE SENATE AND THE COURT 


but indicated as permissible by the Assembly. On the other 
hand, no member of the British Empire has accepted the op- 
tional clause. A petition, signed by half a million people, 
urging the British Government to accept the principle of arbi- 
tration in all international disputes, and presented on September 
Ath, 1925, elicited from the Foreign Office a reply to the effect 
that as to disputes which are likely to lead to rupture, the 
British Government is already bound under Article 15 of the 
Covenant to submit all such disputes to arbitration or to the 
Council. Acceptance of the optional clause would, therefore, 
have only the effect of sending disputes prescribed in Article 36 
of the Statute to the Court instead of the Council. The Brit- 
ish Government does not consider it wise to surrender this right 
of resort by preference to the Council for there may be disputes 
falling under the classes mentioned in Article 36, of a nature 
wherein it may be more desirable to have them settled by the 
procedure of the Council. With respect to disputes not likely 
to lead to rupture the Government points out that their pacific 
settlement is being advanced through arbitration treaties and 
that it would not be wise to agree in advance to submit to 
arbitration every dispute which may arise, for the “constitu- 
tion of the British Empire is not unitary, and it is perilous to 
proceed as if it were.” The assent of the Dominions and of 
India being necessary, it is not possible to give unqualified 
undertakings which it may prove impracticable to fulfill. 


105. Jurisdiction conferred by the optional clause is not 
stable: This jurisdiction is uncertain because many of the 
signatures expire in 1926 and 1927. It is not known whether 
they will be renewed; or whether advantage will be taken by 
the present signatory states to stipulate new conditions in view 
of the interpretation set forth in the Geneva Protocol increas- 


11 Reply from Foreign Office to the National Committee for the 
Prevention of War. (London Times, September 26th, 1925.) 


a 


OBLIGATORY JURISDICTION +5 


ing the range of reservations, following the example of 
France.’? The jurisdiction is unstable because the experiment 
of the Geneva Protocol may be repeated; and the tendency to 
confer jurisdiction upon the Court through security pacts 
containing arbitration agreements marks a departure from the 
inclusion of these obligations within the Covenant and Statute. 
The difference between the method proposed by the Advisory 
Committee of Jurists, incorporating obligatory jurisdiction in 
the enacting Statute and that followed by the League in the 
optional clause is profound. In the first instance, the juris- 
diction applies equally to all signatories; it is not subject to 
alteration except with the consent of all signatories; it is not 
properly a matter to be interpreted by a part of the signatories 
in separate instruments; and it is not subject to reservations 
which permit of different interpretations by different signa- 
tories. Under the optional clause, the jurisdiction is subject 
to fluctuations in time, in reciprocity, in application as between 
members of the League and non-member States, in the nature 
of the reservations and in possible renewals. The computation 
of the actual amount of jurisdiction conferred upon the Court 
by the optional clause is, therefore, speculative. 


106. The Harding-Hughes proposal does not recommend 
acceptance of the optional clause: The accompanying mem- 
orandum is specific to the effect that acceptance of the optional 
clause is not recommended. None of the other proposals before 
the Senate contains any indication that adherence to the Special 


12 Anticipating that renewals might not occur in all cases the Sixth 
Assembly adopted a resolution, on September 22nd, 1925, requesting 
the Secretary-General to draw the attention of signatory states to 
measures to be taken in order to renew their signature. This resolution 
is somewhat unique in that members of the League which have not ac- 
cepted the optional clause appear to have voted in favor of urging 
their co-members to continue a policy which they had refused to 
accept for themselves. 


76 THE SENATE AND THE COURT 


Protocol would be acceptable to this country. Senator Borah’s 
resolution to outlaw war states that “affirmative jurisdiction” 
should be conditioned upon the abolition of war and upon the 
adoption of a code of international law. The attitude toward 
compulsory arbitration, whereby the right of unilateral sum- 
mons is conferred upon the Court, is equally definite; as may 
be seen from the proposal in favor of obligatory arbitration, 
made by Mr. Choate at the Hague Conference of 1907. The 
principle was rejected by the Senate in its ratification of the 
Convention of 1907 wherein it stated that recourse to the 
Permanent Court of Arbitration could only be had by special 
or general treaties of arbitration concluded between the parties 
to a dispute.* There is nothing in the record to indicate that 
the recommendations of the Advisory Committee of Jurists, 
granting a measure of compulsory jurisdiction to the Court 
under its own Statute, would have received the endorsement of 
the Senate of the United States. The record indicates that this 
Government will not consider any proposal for general com- 
pulsory arbitration or for obligatory jurisdiction that is not 
founded upon a code of international law. 


18 Text of reservation follows: 

That the United States approves this Convention with the under- 
standing that recourse to the Permanent Court for the settlement 
of differences can be had only by agreement thereto through general 
or special treaties of arbitration heretofore or hereafter concluded 
between the parties in dispute; and the United States now exercises 
the option contained in Article 53 of said Convention, to exclude 
the formulation of the compromis by the Permanent Court, and 
hereby excludes from the competence of the Permanent Court the 
power to frame the compromis required by general or special treaties 
of arbitration concluded or hereafter to be concluded by the United 
States, and further expressly declares that the compromis required 
by any treaty of arbitration to which the United States may be a 
party shall be settled only by agreement between the contracting 
parties, unless such treaty shall expressly provide otherwise. The 
Hague Court Reports, Scott, p. cvil. 


CHAPTER VIII 
JURISDICTION UNDER TREATIES 


107. Treaties and conventions in force may confer juris- 
diction upon the Court: Such jurisdiction is conferred by 
general or special agreements between the parties to the instru- 
ment. The jurisdiction may be obligatory wherein the Court 
alone is named as the tribunal; or it may be obligatory as to 
submission but optional as to the choice of tribunal; or it may 
depend upon the intervention of some agency or state not a 
party to the dispute. The jurisdiction includes cases but may 
extend to any matter contained in a treaty in force, for para- 
graph 1 of Article 36 of the Statute authorizes the Court to 
take jurisdiction over matters especially provided for in treaties 
and conventions in force whenever the parties or signatories so 
request. 


108. Obligatory jurisdiction is conferred upon the Court 
by Part XIII of the Treaty of Versailles, relating to inter- 
national labor: Article 415 of this Treaty and the corre- 
sponding clauses of the Treaties of St. Germain, Trianon and 
Neuilly provide for an appellate jurisdiction of the Court from 
the findings of commissions of inquiry concerning the effective 
observance of conventions which have been adopted by the 
Labor Conferences and ratified by states; Article 416 provides 
for primary jurisdiction in case of a member’s failing to take 
action for enactment of legislation recommended by such con- 
ventions. Articles 417-420 constitute the only section of the 
Treaty of Versailles which authorizes the Court to indicate the 
penalty for violation. This jurisdiction has not been invoked. 

77 


78 THE SENATE AND THE COURT 


Article 423 of the Treaty of Versailles, and the corresponding 
sections of the Treaties of St. Germain, Trianon and Neuilly 
provide that any question in dispute, relating to the interpreta- 
tion of Part XIII, or any subsequent convention concluded in 
pursuance of its provisions, shall be referred for decision to the 
Court. The Court has been called upon to make three interpre- 
tations of these provisions, but in each case the question was 
submitted by way of the Council of the League for an advisory 
opinion.* 


109. Obligatory jurisdiction is conferred upon the Court 
by provisions in the Peace Treaties relative to transit ; 
Article 386 of the Versailles Treaty relating to the Kiel Canal 
confers power exclusively upon “the jurisdiction instituted for 
the purpose by the League of Nations.” Use was made of 
this jurisdiction by the Principal Allied Powers against Ger- 
many in submitting the case of the S. 5S. “Wimbledon” for a 
judgment.2 Articles 327 of the Treaty of St. Germain and 
310 of the Treaty of Trianon confer jurisdiction on the Court 
with regard to the interpretation of these Articles and of the 
telegraph and telephone conventions to be drawn in accordance 
with such articles between Czechoslovakia, Austria and Hun- 
gary respectively. Article 336 of the Treaty of Versailles 
and the corresponding clauses of the treaties with Austria, 
Hungary, Bulgaria, Roumania and Poland, relating to interna- 
tional rivers, made a provisional arrangement under which in- 
terested states may appeal “to the tribunal instituted for this 
purpose by the League of Nations.” Under Article 338 of the 
Versailles Treaty, however, the final provision was laid down 
by an international convention, approved by the League of Na- 


1See Chapter XII relating to Jurisdiction with Respect to Interna- 
tional Labor. 

2See Chapter XIII relating to Jurisdiction concerning Transit 
and Communications. 





JURISDICTION UNDER TREATIES 79 


tions; the jurisdiction conferred hereunder is not obligatory and 
is discussed elsewhere.’ 


110. Obligatory jurisdiction is conferred on the Court by 
international conventions relating to transit: These in- 
clude: The Convention for the Regulation of Aerial Naviga- 
tion (Paris, 1919), providing for the obligatory submission of 
disputes concerning the interpretation of the Convention; the 
Convention on the Statute of the Danube (Paris, 1921), con- 
ferring obligatory jurisdiction whenever a signatory state sub- 
mits a matter alleging that a decision of the International 
Commission violates the Convention ; the Convention relating to 
the Simplification of Customs Formalities (Geneva, 1923), 
providing for obligatory submission of disputes concerning the 
interpretation and application of articles relating to the enforce- 
ment of customs regulations and the publication of legislation 
concerning them; and the conventions for the Regulation of 
Aerial Navigation between Norway and Denmark and Norway 
and Sweden, providing for resort to the Court in case the par- 
ties cannot settle, by direct negotiation, disputes concerning the 
interpretation and application of the convention. 


111. Obligatory jurisdiction is conferred by mandates 
drawn up in accordance with Article 22 of the Covenant: * 
They provide that disputes between the mandatory and a mem- 
ber of the League of Nations, concerning the interpretation or 
application of the mandate shall be submitted to the Court. 


3 See Chapter XIII. 
4Paragraph 2 of Article 7 of the Mandate for Nauru, which is 
reproduced in the other mandates, provides as follows: 

The mandatory agrees that, if any dispute whatever should arise 
between the mandatory and another member of the League of Nations 
relating to the interpretation or the application of the provisions of 
the mandate, such dispute, if it cannot be settled by negotiation, 
shall be submitted to the Permanent Court of International Justice 
provided for by Article 14 of the Covenant of the League of Nations. 


80 THE SENATE AND THE COURT 


The Mandate for East Africa, entrusted to Great Britain, con- 
tains an additional clause providing that states, members of 
the League of Nations, may bring before the Court for decision 
claims on behalf of their nationals. Although this clause is 
contained in no other mandate, its principle was applied by the 
Court in the case of the Mavrommatis Palestine Concessions, 
arising under the Palestine Mandate and submitted by the 
Greek Government. The Government of Great Britain ques- 
tioned the competence of the Court on the ground that the party 
to the dispute was a Greek subject and not the Greek Govern- 
ment. Since the Government of Greece had, however, taken 
up the matter on behalf of its subject, the Court overruled 
the British objection and held itself competent to deliver a 
judgment. 


112. Obligatory jurisdiction is conferred by various polit- 
ical conventions drawn up as a result of the Peace Treaties: 
These conventions may confer jurisdiction:*® (a) In matters 
of interpretation, or (b) in matters concerning actual rights of 
parties. Examples of the first, and less important order, are 
the following: (1) The Treaty between Great Britain and 
Iraq, signed at Bagdad in October, 1922; (2) the convention 
for conciliation and arbitration signed by Latvia, Esthonia, 
Finland and Poland, at Helsingfors in January, 1925. Of the 
second order are the following: (1) The Polish-German Agree- 
ment with Reference to Upper Silesia, signed at Geneva, May, 
1922, (Art. 2) provides that Germany may summon Poland 
before the Court in matters concerning the terms of new legis- 
lation to be introduced by Poland, with the reservation that 
such matters first must be declared to be suitable for submis- 


5 See Annex VIII for complete list of Mandates. 

6 An instance of obligatory jurisdiction conferred independently of the 
Peace Treaties is the Convention between Denmark and Norway con- 
cerning Eastern Greenland (1924). 


JURISDICTION UNDER TREATIES 81 


sion to the Court by the Upper Silesian Mixed Arbitral Tribu- 
nal. Article 23 refers to the Court differences of opinion con- 
cerning the expropriation by Poland of German industrial 
undertakings and rural estates. Under this authorization, Ger- ~ 
many has requested a judgment on certain expropriations,’ 
Poland has, however, filed a plea questioning the jurisdiction 
of the Court. (2) The London Agreement of August 30th, 
1924, between the Allied Governments and Germany provides 
that all disputes which may arise between them relating to the 
arrangement of August 9th, 1924, between the German Govy- 
ernment and the Reparation Commission and which cannot be 
settled by negotiation shall be submitted to the Court. (3) 
The Inter-Allied Agreement of the same date and relating to 
the same subject, contains a provision binding the Allied Powers 
to submit to the Court differences between themselves arising 
under the agreement. (4) The Treaty of Mutual Guarantee 
between Germany, Great Britain, France, Italy and Belgium 
initialled at Locarno, October 16th, 1925, provides that ques- 
tions concerning the respective rights of parties shall be sub- 
mitted to judicial decision. (5) The Treaties of Arbitration 
between Germany and Czechoslovakia, Poland, France and 
Belgium respectively, provide for obligatory jurisdiction of the 
Court in the instance that, in a dispute concerning the rights of 
parties, the Permanent Conciliation Commission, provided for 
by these treaties, is unable to effect an agreement. If the par- 
ties cannot agree on the terms of a special agreement for the 
submission of the dispute to the Court or to arbitral procedure, 
under the Hague Conventions of 1907, after one month’s no- 
tice, either of the parties may bring the dispute before the 
Court by means of an application. 


113. The interpretation of the Peace Treaties in general 
was not intended to come within the obligatory compe- 


7 See Annex I for judgment; and Annex VIII for list of conventions. 


82 THE SENATE AND THE COURT 


tence of the Court: Notwithstanding the avowed purpose of 
creating the Court in order to facilitate the application of the 
terms of the Peace Treaties, the amount of obligatory jurisdic- 
tion concerning their interpretation is comparatively unim- 
portant. Matters not entrusted to the Court include the 
following: The Court is not authorized to interpret the pro- 
visions of the Covenant. Later interpretations of the Cove- 
nant, namely, the Treaty of Mutual Assistance and the Geneva 
Protocol entrusted their own interpretation to the Court. 
Whether by inference these instruments, had they been ac- 
cepted, would have empowered the Court to have interpreted 
the Covenant which they expanded, may not be determined. 
It is, however, the opinion of members of the Council that the 
interpretation of the Covenant is the right of the Assembly or 
of the Council, utilizing, if need be, the services of special 
committees of jurists. The Court is not authorized to inter- 
pret the Peace Treaty with respect to questions arising con- 
cerning boundaries, that matter having been entrusted to the 
Principal Allied Powers which exercise the right through the 
Conference of Ambassadors. The Conference, however, may 
in its own discretion, request, through the Council, an advisory 
opinion on any legal point connected with its decisions. The 
opinions requested in the matters of Jaworzina and Saint 
Naoum furnish illustrations.2 The Court is not authorized to 
interpret questions arising under the articles of the Versailles 


8 Article 10 was interpreted by the Fourth Assembly; Article 11 by 
the Secretary-General of the League; Article 15 by a Committee of 
Jurists; Article 16 by the Blockade Commission; Article 18 by a Com- 
mittee of Jurists; Article 19 by a Committee of Jurists; and Article 
21 by the Second Assembly. The Sixth Assembly has adopted a reso- 
lution, submitted by the Netherlands delegation, with regard to a 
further explanation by a Committee appointed by the Council, of the 
interpretation given to Article 15 by the Special Committee of 
Jurists. 

® For summary of opinions and judgments, see Annex I. 


JURISDICTION UNDER TREATIES 83 


Treaty relating to the Saar Basin, the Governing Commission 
being given authority to decide all questions arising from the 
interpretation of clauses relating to the cession of territory, 
the exploitation of mines, and the administration of govern- 
ment. The Court is not authorized to interpret Part X of the 
Versailles Treaty relating to economic clauses, nor Part VIII 
relating to reparations, except as hereinbefore noted. 


114. The obligatory jurisdiction conferred by a multiplic- 
ity of miscellaneous treaties lacks the stability and uniform- 
ity of jurisdiction conferred by the Statute: The recom- 
mendation of the Advisory Committee of Jurists proposed that 
the Court have jurisdiction over certain classes of legal disputes, 
thereby granting to the Court a uniform and stable jurisdiction. 
The members of the League, however, in rejecting this pro- 
posal, exercised the undeniable right to grant where they will, 
in their own discretion, in their agreements with each other, only 
that amount of jurisdiction which they deem advisable. The 
result is a multiplicity of agreements which appear to confer 
upon the Court the right of unilateral summons, but which, in 
practice, seem to become inoperative. Examples occur in the 
labor sections of the Treaty of Versailles, wherein the Court 
is authorized to interpret the provisions of Part XIII, but in- 
stead, the Court is found to be engaged in advisory proceedings. 
Again, under Minority Treaties, it appears that any member 
of the Council may resort to the Court, but instead the Council 
requests advisory opinions; and under the transit clauses pre- 
liminary intervention tends to separate the parties from the 
Court. As has been noted, treaties appear to divide their grant 
of jurisdiction, giving certain rights to the Court or other 
rights to the Council, or still other rights to arbitral tribunals 
or conciliation commissions. Illustrations occur in the Upper 
Silesian Convention, which gives the Court obligatory jurisdic- 
tion as regards legislation to be introduced by Poland, and ex- 


84 THE SENATE AND THE COURT 


propriations, but reserves equally important questions concern- 
ing the economic welfare of the territory to the Upper Silesian 
Mixed Commission and to the Arbitral Tribunal. The Guaran- 
tee Treaty of Locarno gives the Court jurisdiction over matters 
concerning the rights of parties and reserves all other matters 
to commissions of conciliation or to the Council. 


115. Optional jurisdiction is conferred by treaties of con- 
ciliation and political agreements: The object of such trea- 
ties being the peaceful settlement of disputes, recourse to the 
Court appears to be of secondary importance. The agreement 
concerning arbitration between Austria and Hungary, signed at 
Budapest, 1923, provides for the settlement of disputes by arbi- 
tration, and failing this, for reference to the Court. A series of 
treaties of conciliation between Switzerland and Austria, Bel- 
gium, Brazil, Denmark, France, Hungary, Italy, Japan, Poland 
and Sweden respectively ; and a treaty between Czechoslovakia 
and Poland, provide for committees of conciliation, and failing 
these, for submission of the dispute to the Court. The Locarno 
arbitration conventions concluded by Germany with Czechoslo- 
vakia, Poland, France and Belgium respectively, provide that 
Permanent Conciliation Commissions shall be constituted for the 
purpose of settlement of disputes concerning the rights of par- 
ties. Should these Commissions fail, the parties may submit 
their disputes to the Permanent Court of International Justice or 
to an arbitral Tribunal in accordance with the procedure of the 
Hague Convention of 1907.7° 


116, Optional jurisdiction is conferred by a small number 
of commercial treaties: Such are the Treaty of Commerce 
and Navigation between Great Britain and Germany, signed at 
London (1924) ; also the Commercial Convention between Swit- 


10 Jurisdiction is transferred from the Hague Court to the League 
Court by agreements renewing the arbitration conventions of Great 
Britain with Norway and Sweden. 


JURISDICTION UNDER TREATIES 85 


zerland and Poland (1922) ; and the Treaty of Commerce and 
Navigation between Esthonia and Finland (1921). 


117. Optional jurisdiction is conferred by the Covenant: 
Amendments now in force to Articles 12 and 13 of the Cov- 
enant of the League of Nations make resort to the Court 
optional in cases of disputes likely to lead to rupture. Article 
12 provides that such matters may be submitted “either to arbi- 
tration or judicial settlement or to inquiry by the Council’; 
Article 13 specifies that disputes suitable for submission to 
arbitration or judicial settlement, if they cannot be settled by 
diplomacy, will be submitted either to arbitration or judicial 
settlement; and in the latter case the Court to which the case 
is referred shall be the Permanent Court of International Jus- 
tice or any tribunal agreed on by the parties. 


118. Optional jurisdiction is conferred by certain political 
conventions: ‘4 These conventions, negotiated between two or 
more countries, provide that the Court shall be one of several 
means for the settlement of disputes arising under them. Illus- 
trations are the following: (1) The agreement between the 
Czechoslovak Republic and Austria, signed at Prague (1921), 
providing that disputes may be submitted to the Court “or to 
an arbitrator or arbitrators chosen ad hoc.’ (2) The Conven- 
tion, signed at Warsaw (1922), between Esthonia, Finland, 
Latvia and Poland, provides that all “more important questions” 
shall be submitted to arbitration either by arbitrators or by the 
Court.” 


11g. Optional jurisdiction is conferred by treaties of alli- 
ance and security in exceptional instances: ‘These treaties 
rest upon force in preference to judicial decision. A notable ex- 


11 See Annex VIII for complete list. 
12 This convention was not ratified by Finland. 


86 THE SENATE AND THE COURT 


ception occurs in the Treaty of Alliance and Friendship between 
France and Czechoslovakia wherein Article 6 provides that the 
High Contracting Parties agree that controversial questions aris- 
ing between the signatories, which they cannot settle by friendly 
agreement and through diplomatic channels, shall be submitted to 
the Court or to one or several arbitrators chosen by them.’* 


120. Jurisdiction may be conferred upon the Court 
through intervention by the League in matters of transit 
and communications: Under Article 376 of the Treaty of 
Versailles (and the corresponding clauses of the Treaties of 
St. Germain, Trianon, and Neuilly) disputes concerning the 
interpretation and application of Part XII (Ports, Waterways 
and Railways) of the Treaty of Versailles shall be settled “as 
provided by the League of Nations.” Article 338 of the 
Treaty also lays certain duties upon the League with respect 
to navigable waterways. The League has, accordingly, drawn 
up a procedure for the settlement of such disputes by concilia- 
tion and, failing this, the matter may be submitted to the 
Court. The Barcelona Convention and Statute on Freedom of 
Transit and on the Régime of Navigable Waterways of Interna- 
tional Concern, as well as the Geneva Conventions on the Inter- 
national Régime of Railways and the International Régime of 
Maritime Ports, follow the procedure prescribed by the League 
of Nations. The conventions on the International Régime of 
Railways and the International Régime of Maritime Ports spec- 
ify that during the course of arbitrations parties are bound “in 
the absence of any contrary provision in the terms of reference” 
to submit to the Court any questions of law, the solution of which 
the arbitral tribunal at the request of one of the parties, pro- 
nounces to be a necessary preliminary to the settlement of the 
dispute. Certain clauses of the Peace Treaties fall under the 


18 For discussion of alliances of security, see Chapter XVII on Inter- 
national Sanctions in Relation to the Court. 


JURISDICTION UNDER TREATIES 87 


procedure for the settlement of disputes on transit and communi- 
cation, as elaborated by the League of Nations. Instances occur 
in Article 324 of the Treaty of St. Germain, providing that dis- 
putes arising under the Conventions between the Czechoslovak 
and the Austrian Railway Administrations shall be settled under 
procedure to be laid down by the League; and Article 293 of the 
Treaty of Trianon which provides that any disputes between the 
states concerned, respecting the regulations to be drawn up by 
the Hydraulic System Commission, shall be settled as provided 
by the League of Nations. 


121. Jurisdiction may be conferred upon the Court 
through intervention by the League in matters relating to 
minorities: The sections of the Treaties of St. Germain, 
Trianon, Neuilly and Lausanne, relating to minorities, as well 
as treaties concluded between the Allied Powers and Poland, 
Roumania, Czechoslovakia, Greece and the Serb-Croat-Slovene 
State, known as Minority Treaties, confer upon the Court a 
unilateral compulsory jurisdiction which is binding only upon 
the country containing the minorities in question.‘* They pro- 
vide that disputes as to questions of law or fact concerning such 
treaties, arising between the country containing the minorities 
and a member of the Council shall be referred to the Court 


14 Paragraph 3 of Article 12 of the Polish Minority Treaty, which 
was closely followed in the other Minority Treaties, provides: 

Poland further agrees that any difference of opinion as to questions 
of law or fact arising out of these articles between the Polish Gov- 
ernment and any one of the Principal Allied and Associated Powers 
or any other Power, a member of the Council of the League of 
Nations, shall be held to be a dispute of an international character 
under Article 14 of the Covenant of the League of Nations. The 
Polish Government hereby consents that any such dispute shall, if the 
other party thereto demands, be referred to the Permanent Court of 
International Justice. The decision of the Permanent Court shall 
be final and shall have the same force and effect as an award under 
Article 13 of the Covenant. 


88 THE SENATE AND THE COURT 


upon the demand of such member of the Council. Thus a 
member of the Council is in position to summon Austria, Hun- 
gary, Bulgaria, Yugoslavia, Czechoslovakia, Roumania, Greece 
and Turkey before the Court #° while these governments have 
no way of placing their complaint on behalf of their national 
minorities other than through the Council of the League. The 
Court has jurisdiction over the merits of a case only when a 
member of the Council chooses to submit the matter for decision, 
this act being entirely optional. The procedure adopted by the 
Council for the examination of minority petitions establishes 
the practice that members of the Council will not proceed 
directly to the Court but will act jointly through the Council 
whenever the jurisdiction of the Court is invoked. The pro- 
cedure is as follows: The petition of the minority must follow 
prescriptions which limit it as to kind and content; a petition 
complying with such prescription is sent to the Secretariat of 
the League; thence it goes to the state complained against which 
is given two months or, upon request, a more extended period 
of time to make its comments; together with the complaint the 
comments are then submitted to a committee of three members 
of the Council which decides whether a member of the Council 
should draw the attention of that body to the petition. If the 
Committee decides favorably, then the matter is taken up by 
the Council and there discussed.1® Only during such discussion 
may a member of the Council announce its desire to submit the 
question to the Court. On such occasions the competence of 


15 The Germano-Polish Convention with respect to Upper Silesia pro- 
vides in Article 72 for the protection of minorities in the same manner 
as the Polish Minority Treaty. Accordingly, Germany can be sum- 
moned to Court in a matter specifically concerning the Polish minori- 
ties in Upper Silesia; but not in any matter concerning other minorities. 

16 For provisions see Official Journal, November, 1923, p. 1293. Also 
a recent provision regulating the appointment of the Committee of the 
Council, Monthly Summary of the League of Nations, June, 1925, p. 160. 


JURISDICTION UNDER TREATIES 89 


the Court or that of the Council is usually questioned by the 
defendant state.’ The result is that no question arising from 
Minority Treaties has as yet been submitted to the Court for 
a judgment by a member of the Council; but two such matters 
affecting German settlers in Poland have been submitted by the 
Council for an advisory opinion. 


122. Jurisdiction may be conferred through conventions 
negotiated by the League: An instance occurs in the Con- 
vention concerning the Transfer of the Territory of Menel, 
signed at Paris, May, 1924, which gives unilateral jurisdiction 
to the Court against the Lithuanian Government, upon request 
of members of the Council as to differences of opinion arising 
from questions of law or fact concerning the provisions of the 
Convention. 


123. Direct access to the Court appears to be difficult 
where jurisdiction may be invoked through intervention 
of the League: Paragraph 1 of Article 36 of the Statute 
granting to the Court jurisdiction over matters specially pro- 
vided for in treaties and conventions in force is intended to 
afford parties to treaties direct access to the Court. Up to the 
present time such has not been the result. On the contrary, 
a policy has been followed whereby the Council has interfered 
with such direct access by the interposition of its authority 
between the parties and the Court. This has been accomplished 
through the creation of technical machinery with respect to 
transit matters, through the adoption of dilatory procedure in 
matters relating to minorities, and through reserving to mem- 
bers of the Council the right, in certain instances, to invoke the 


17 Examples are the case of Hungarian optants in Transylvania 
where such competence was questioned by Roumania; and the cases of 
the German settlers in Poland and the acquisition of Polish nationality, 
where the competence was questioned by Poland. 


go THE SENATE AND THE COURT 


jurisdiction of the Court. A policy is, therefore, established 
of interposing a procedure prior to submission of a matter to 
the Court, thereby separating parties from the Court and in- 
tercepting judicial decisions. 


124. Jurisdiction conferred upon the Court by treaties to 
which members of the League are parties may be converted 
into advisory jurisdiction: Since the Council may request an 
opinion upon any case and every subject, it follows that with 
respect to members of the League it may interfere in the 
settlement of disputes which one of such parties may desire 
to submit to the Court through direct access. The Council may 
exercise this right through suggestion that the parties recognize 
their obligation under the Covenant and submit the dispute for 
an advisory opinion rather than a judgment; or the Council 
may request an opinion upon the request of one of its members 
without the consent of either or both parties; or the Council 
may take jurisdiction under Article 15 of the Covenant upon 
request of one party and establish the claim that negotiations 
are still in progress as a barrier to the Court’s taking jurisdic- 
tion; or, finally, the Council may assist in framing treaties 
which restrict invoking the jurisdiction of the Court to members 
of the Council. There is no legal obstacle to the conversion of 
the obligatory and optional jurisdiction into advisory proceed- 
ings. 


125. It is possible to exaggerate the increase in judicial 
settlements which may be represented by the multiplicity 
of agreements conferring jurisdiction upon the Court: Ap- 
parently the jurisdiction of the Court is immeasurably enlarged 
by the provisions contained in treaties. Actually, judicial settle- 
ment is problematical in view of the steps which may be inter- 
posed whenever resort to such jurisdiction is contemplated. 
The forms of intervention include advisory opinions, prelim- 


JURISDICTION UNDER TREATIES gl 


inary hearings, adjudications before other bodies, or the inter- 
position of agencies between the parties and the Court. In view 
of the conflicting jurisdiction and the competition from which 
the Court suffers—namely the Council, the Conference of Am- 
bassadors, mixed tribunals, special arbitral tribunals, commis- 
sions on conciliation and other bodies,—the amount of juris- 
diction which the Court is permitted by a party to exercise for 
the purpose of rendering judgments appears to depend upon 
the good will of other tribunals. This fact is indicated by the 
disproportion between advisory opinions and judgments, the 
ratio between the matters submitted being 12 to 4.. The record 
indicates that of the sixteen matters submitted to the Court 
but two concerned questions arising from instruments not con- 
nected with the Peace Treaties. This proportion affords evi- 
dence of the degree to which the Court forms a part of the 
system created by the Treaty of Versailles. 


126. The United States has indicated its intention to con- 
fer optional jurisdiction upon the Court when the Senate 
gives its assent to adherence to the Court Statute: Adher- 
ence was anticipated at the time the United States renewed, on 
June 23rd, 1923, its arbitration convention with Great Britain. 
In an exchange of notes it was agreed that in the event the 
Senate gives its assent to the proposal for adherence to the 
Court, a modification of the convention may take place pro- 
viding for the reference of the disputes mentioned therein to 
the Permanent Court of International Justice. Similar under- 
standings were reached when arbitration conventions were re- 
newed with France, Norway, the Netherlands and Japan; and 
also on the occasion of the signature to the Convention between 
the United States and the Netherlands respecting the Regula- 
tion of Liquor Traffic, in August, 1924, at Washington. 


CHAPTER-Txk 
JURISDICTION OVER NON-JUDICIAL MATTERS 


127. The Court has jurisdiction over matters other than 
suits or disputes between states: Article 36 of the Statute 
provides that the Court shall have jurisdiction over all cases 
which the parties refer to it and over all matters especially pro- 
vided for in treaties and conventions in force. The Advisory 
Committee of Jurists limited the jurisdiction of the Court to 
suits between states and to disputes of any kind which may be 
submitted to it under a general or particular convention between 
the parties. The Assembly substituted the above provision. 
The reason for the change is not indicated from the record of 
discussion, the Third Committee which prepared the revised 
draft confining itself to the statement that the agreement “may 
be in the form of a special convention submitting a given case 
to the Court, or of a Treaty or a general convention embracing 
a group of matters of a certain nature.” * Of such an order 
would be the Peace Treaties and Conventions concluded there- 
under, or any future treaty or agreement dealing with matters 
of interest to special groups of states. 


128. The phrasing of paragraph 1 of Article 36 extends 
the jurisdiction of the Court to the consideration of non- 
judicial matters: There is no definition of what is meant by 
matters specially provided for in treaties and conventions in 
force; and there is no limitation placed upon what the clause 
may be interpreted to include. This interpretation is left solely 


1 Records of the First Assembly, p. 463. 
92 


NON-JUDICIAL MATTERS 93 


to the discretion of the Court, which it may exercise by a 
majority vote. 


129. The Court may advise upon non-judicial matters: 
The Covenant authorizes the Council to submit any case and 
every question to the Court. The Statute contains no regula- 
tions to guide the Court; and it has adopted no regulations 
of its own. The determination of what matters the Court will 
undertake to determine in the future depends largely upon what 
the Council chooses to submit and upon what a majority of the 
Court decides to accept.2 Certain provisions in the Statute 
facilitate the assumption of non-judicial duties. For instance, 
Article 50 provides that the Court may at any time entrust any 
individual, body, bureau, commission or any other organization 
that it may select with the task of carrying out an inquiry or 
giving an expert opinion. This authorization does not appear 
to be limited to a controversy submitted by the parties. There 
is at present a controversy between the United States and 
France over the capacity of the latter to pay its war debts. 
There appears to be no legal obstacle to prevent the Council 
from submitting to the Court for an opinion the question of 
the competence of France to pay its debts, provided the re- 
quest has the assent of France and comes through the Council. 
Nor is there any legal obstacle to the appointment of a com- 
mission of inquiry by the Court for the purpose of determining 


2 The only theoretical interpretation given to this clause appears in 
a statement by Mr. Moore (U. S. A.): He states that “the phrase 
‘cases which the parties refer to it’ obviously contemplated only disputes 
between governments, and, unless the phrase ‘all matters provided for 
in treaties and conventions in force’ is subject to the same or to a 
similar limitation, the Court conceivably might be required to act as 
a board of conciliation, as a mediatorial body, or as an agency for the 
exercise of good offices. In such event, the Court would, under the 
last paragraph of the Article, itself determine the question of its 
jurisdiction.” P.C. of I. J. Doc. D. No. 2, p. 385. 


94. THE SENATE AND THE COURT 


the facts in the matter. Such action would not require the 
consent of the United States for the question could be framed 
in a general manner. There exists a controversy between the 
United States and Japan over immigration. There appears to 
be no legal obstacle to the submission of the general question 
to the Court for an opinion and for inquiry to be made under 
Article 50. There may arise, in an economic conference or 
elsewhere, a dispute over the question of tariffs. There ap- 
pears to be no legal obstacle to the Court’s ordering an inquiry 
into this question pursuant to a request for an advisory opinion. 
It is immaterial to point out that the United States would not be 
bound by an opinion rendered by the Court, for its embarrass- 
ment in repudiating an opinion rendered by the Court to which 
it had given its adherence is self-evident; nor would such re- 
pudiation necessarily stem resort to propaganda. 


130. The Court or its President is authorized to appoint 
arbitrators: The Peace Treaties provide for Mixed Arbitral 
Tribunals for the settlement of certain questions arising there- 
under; one member is to be appointed by each party and the 
third, a neutral chairman, is to be appointed by agreement, or 
failing this, by the Council of the League. This duty appears 
to have been conferred in later instances upon the President of 
the Court. An agreement to confer such power is found in 
a commercial treaty between Latvia and Czechoslovakia, signed 
in 1922, which provides that a Mixed Arbitral Tribunal shall 
be constituted ad hoc for the settlement of differences and that, 
failing agreement between the two national representatives, 
the third arbiter shall be appointed at their request by the 
President of the Court. The principle, thus established, was 
followed in the Lausanne Treaty whereunder, failing agree- 

8It should be noted that these domestic questions may be submitted 
by other states to the Court for a judgment and a policy may be es- 


tablished thereby which cannot fail to react upon the position taken 
by the United States with respect to these questions. 


NON-JUDICIAL MATTERS 95 


ments between the parties, the President of the Court appoints 
the presidents of the Mixed Arbitral Tribunals to be estab- 
lished between Turkey and the Allied Powers; and an umpire 
for any arbitral tribunal for the settlement of the compensation 
payable by Greece to Allied nationals. Under the former 
provision, the President of the Court has appointed the Presi- 
dents of the Greco-Turkish, Roumano-Turkish, Anglo-Turkish 
and Italo-Turkish Mixed Tribunals. Several duties are con- 
ferred upon the President of the Court by the London Agree- 
ments. There under, failing agreement between the Repara- 
tion Commission and Germany, the President of the Court is 
to appoint the arbitrator or arbitrators who give the final 
decision concerning certain differences. Three such instances 
are mentioned, one of which specifies that the chairman of 
such arbitral commission is to be a citizen of the United States. 
In two instances, the President of the Court is authorized 
to appoint financial experts (in the one instance specifically in- 
cluding a citizen of the United States), should the Transfer 
Committee (the organization entrusted with their appointment) 
be unable to reach unanimity. Finally, if the Reparation Com- 
mission cannot reach a unanimous agreement upon the appoint- 
ment of an American citizen who is to take part in its dis- 
cussion with regard to any point relating to the report of the 
First Committee of Experts; and if no unanimous agreement 
can be reached for the appointment of the committee of arbi- 
trators (including a chairman, citizen of the United States) 
which has the duty to make the final decision concerning any 
default by Germany, such appointments shall be made by the 
President of the Court. While these provisions are undoubtedly 
designed to prevent deadlock and to facilitate settlements, they, 
nevertheless, bring the Court into a more intimate and respon- 
sible relation to the Peace Treaties, not for the purpose of 
advancing the application of judicial decisions to the settle- 
ment of disputes, but for the purpose of promoting concilia- 


96 THE SENATE AND THE COURT 


tion through arbitration. The act of the Court in making 
nominations thus becomes tributary to arbitral tribunals. 


131. The Court is authorized to make nominations for 
national offices: The Declaration made by Turkey, as part of 
the Lausanne Treaty, provides that the Turkish Government 
will take into its service legal counsellors whom it will appoint 
from a list of nominations to be furnished by the Court from 
countries which did not participate in the war. These coun- 


4 The Declaration reads as follows: 

(1) The Turkish Government proposes to take immediately into 
its service, for such period as it may consider necessary, not being 
less than five years, a number of European legal counsellors whom 
it will select from a list prepared by the Permanent Court of Inter- 
national Justice of The Hague from among jurists, nationals of 
countries which did not take part in the war of 1914-18, and who will 
be engaged as Turkish officials. 

(2) These legal counsellors will serve under the Minister of Jus- 
tice; some will be posted in the city of Constantinople and others in 
the city of Smyrna. They will take part in the work of the legisla- 
tive commissions. It will be their duty to observe, without inter- 
fering in the performance by the magistrates of their duties, the 
working of the Turkish civil, commercial and criminal courts, and 
to forward to the Minister of Justice such reports as they may con- 
sider necessary; they will be authorized to receive all complaints to 
which the administration of Justice in civil, commercial or criminal 
matters, the execution of sentences, or the manner of application of 
the law may give rise, with a view to bringing such complaints to 
the notice of the Minister of Justice in order to ensure the strict 
observance of the provisions of Turkish law. 

Similarly, they will be authorized to receive such complaints as 
may be caused by domiciliary visits, perquisitions or arrests; more- 
over, these measures shall, in the judicial districts of Constantinople 
and of Smyrna, be brought immediately after their execution, to the 
notice of the legal counsellor by the local representative of the Minis- 
ter of Justice; this official shall in such cases be authorized to cor- 
respond directly with the legal counsellor. Declaration Relating 
to the Administration of Justice in Turkey. 


NON-JUDICIAL MATTERS «97 


sellors are to be Turkish officials attached to Turkish courts. 
Their duty is to observe and report upon the administration 
of Turkish laws to the Turkish Minister of Justice. They 
are local officers performing duties within the national domain 
of Turkey. In accordance with the provisions of the Dec- 
laration, Ismet Pasha, on October 26th, 1923, requested the 
President of the Court to draw up a list of candidates. The 
Court decided to comply and instructed its President to request 
the highest legal authorities of Denmark, Spain, Norway, the 
Netherlands, Sweden and Switzerland each to communicate to 
the Court the names of two nationals who were qualified to 
undertake the duties of legal counsellors to the Turkish Govern- 
ment. The list was duly drawn up and forwarded by the 
President of the Court to the Turkish Government, and 
the President of the Court has been informed, by the 
Turkish Minister for Foreign Affairs, that three appointments 
have been decided upon and a fourth is to follow. It may be 
argued that the insistence by the Turkish representatives that 
the capitulatory rights in Turkey be abolished involved the 
judicial protection of foreigners, and the undertaking to attach 
counsellors to the Turkish Courts, which were to take over the 
functions of consular courts, was intended as a juridical safe- 
guard; and, therefore, the Court was performing a necessary 
act. But political exigencies which imperil the ratification of 
a treaty, if held to constitute a judicial reason for granting 
to the Court extra-territorial duties, tend to establish the Court 
as performing quasi-judicial functions. 


132. The Court has established a precedent in under- 
taking duties of an extra-territorial nature: In electing to 
perform the duty laid upon it by the Lausanne Treaty, the Court 
has established a precedent which other countries may invoke. 
For instance, there appears to be no reason why the Powers 
should not negotiate a treaty with China whereby the Court is 


98 THE SENATE AND THE COURT 


granted similar or additional authority to perform extra- 
territorial duties. Nor does there seem to be any legal obstruc- 
tion to its undertaking any duties which affect the domestic 
affairs of a state, provided only the parties incorporate such 
duties in a treaty and a majority of the Court are willing to 
assume them. 


133. Extra-territorial duties performed by the Court may 
establish a policy at variance with national practice: The 
United States is not a signatory to the Lausanne Treaty and 
has, therefore, not sanctioned the abolition of capitulations 
which policy has been accepted by other powers. The duty 
assigned to the Court is conditioned on such abolition. On 
the other hand, the Powers may agree to extend the extra- 
territorial duties of the Court with respect to China while the 
United States may be in favor of their abolition. Should such 
a situation arise, the United States would not be in a position 
to make effective protest against the assumption of these duties 
by the Court for a majority of the Court may take the 
decision. It may thus happen that the Committee on Foreign 
Relations in the Senate may favor a policy abolishing extra- 
territorial privileges while the Court performs duties which 
maintain these privileges. 


134. The Court, in the exercise of its non-judicial func- 
tions, appears to be without adequate authority: An 
instance is afforded by the Italo-Greek dispute. This con- 
troversy arose in 1923 over the murder of the Italian members 
of the Commission, appointed by the Conference of Ambassa- 
dors for the Delimitation of the Albanian-Greek Frontier. 
The bombardment of Corfu by Italian warships and its cap- 
ture, as a guarantee that Greece would meet the Italian demands 
for reparations, rendered the situation acute: * and the Con- 


5 For narrative of dispute, see Kellor and Hatvany: Security Against 
War, p. 198. 


NON-JUDICIAL MATTERS 99 


ference of Ambassadors undertook the settlement of the dis- 
pute. On September 8th, 1923, the Conference announced the 
terms of settlement which included one to the effect that the 
Greek Government should undertake to pay the Italian Govern- 
ment an indemnity, the amount of which was to be determined 
in summary procedure by the Permanent Court of International 
Justice, to be judged on the strength of a report by a com- 
mission of inquiry which the Conference was appointing. The 
report was to be forwarded to the Court by the Conference, 
together with its observations. The Greek Government, as a 
caution, was to deposit in the Swiss National Bank the sum of 
fifty million lire, the deposit to be effected under the following 
heading: “To be delivered in whole or in part to the Italian 
Government upon the decision of the Permanent Court of 
International Justice at The Hague.” The Greek Government 
accepted these conditions and deposited the sum with the under- 
standing that the Court would decide the question on the basis 
of the report of the commission of inquiry and would then fix 
the amount of the indemnity. In accordance with the Greek 
instructions, the Swiss National Bank was authorized to make 
payment only upon the decision of the Court. In a note to 
the Greek Government, dated September 13th, 1923, the Con- 
ference specified the manner of compliance and reserved the 
right to notify Greece of any measures of a coercive or punitive 
nature to be taken, including, in particular, the payment of a 
sum of fifty million lire to Italy, in which case the Conference 


6 The Greek instructions follow: 

You will receive through the London County and Westminster 
Bank of London, to the order and for the account of the Greek 
Government, a deposit of fifty million Italian lire, with instructions 
that the sum is to be remitted in whole or part to the Italian Govern- 
ment upon the decision of the Permanent Court of The Hague. 
Please advise the Secretary-General of the League of Nations with- 
out delay as to the amount of the deposit and the object for which it 
is made. (Official Journal, Nov., 1923, p. 1304.) 


100 THE SENATE AND THE COURT 


would request the Court to restore to Greece the security de- 
posited by her and no further application would be made to the 
Court. At this point, the Conference appears to have had in 
mind relieving the Court of the decision and restoring the de- 
posit which was a right the parties could exercise. On Septem- 
ber 26th, however, the Conference rendered its final decision to 
the effect that Italy should have remitted to her the deposit of 
fifty million lire and that the Court should be requested to order 
that such sum be transferred by the Swiss National Bank to the 
Bank of Rome and placed to the credit of the Italian Govern- 
ment. The Court appears to have had no opportunity for pro- 
test against the use made of its prestige to secure the deposit, 
and the subsequent abandonment of reference to its juris- 
diction. In this instance, a powerful group of states, each 
having a national on the Court, secured a deposit of fifty 
million lire upon its assurance that the Court would hear and 
determine the case. With the deposit in hand, they found one 
of their members would not consent to the procedure and there 
being no compulsory jurisdiction, the case could not be sub- 
mitted. When requested to transfer the sum, the Court had 
two courses open: To restore the deposit to Greece on the 
ground that the terms upon which the Court had been made 
custodian had not been complied with; or to transfer the funds, 
as requested. In choosing the latter course, the Court, at the 
behest of four members of the Council, acting presumably under 
Article 36 of the Statute, facilitated a political settlement but 
without performing any judicial function. 


135. Certain principles appear to have been established 
by these instances: (1) The Court shows an inclination to 
undertake duties of a non-judicial character. (2) These duties 
may be laid solely upon the President, as for instance in nomi- 
nating arbitrators or they may be undertaken by the entire 
Court. Their assumption does not require the consent of the 


NON-JUDICIAL MATTERS 101 


other signatories to the Statute and their acceptance is a matter 
for a minimum of five states to decide. (3) The wide latitude 
allowed partial groups of signatory States to the Statute in 
making a treaty to lay new or strange duties upon the Court 
possesses a latent power to change the policy and practice of 
the Court without revising the Statute and without consulting 
a majority of the signatories to the Statute. (4) The Court 
may, therefore, become the depository for duties of a political, 
economic or social nature whenever the parties cannot agree 
upon any other method to secure the application of treaties.’ 
(5) The fact that the Court may facilitate the imposition of a 
penalty without judicial determination of the facts and law in- 
volved, indicates the uses which may be made of its good offices 
in times of supposed crises. 


136. The policy of the United States with respect to the 
non-judicial duties performed by a Court is set forth in its 
national practice: The tradition established early in the his- 
tory of the United States, and consistently maintained, is con- 
trary to that followed by the Permanent Court of International 
Justice. This position was taken early in 1792. By act of 
Congress of March 23rd, it was provided that Circuit Courts 
should decide certain claims of invalid pensioners but that their 
decisions should be subject to revision by the Secretary of War 
and by Congress. The act, in effect, authorized the Supreme 
Court judges, sitting in these courts as commissioners, to per- 
form non-judicial duties. On the ground that this act was an 
encroachment under the division of duties into executive, legis- 
lative and judicial branches, the Circuit Court sitting in 
Pennsylvania declined to proceed with a case and the President 


7For such an instance, see the suggestion made by Viscount Cecil, 
that the President of the Court examine technical clauses of defensive 
treaties for the purpose of exempting them from registration with the 
League. Records of the Second Assembly, p. 845. 


102 THE SENATE AND THE COURT 


was advised by the Chief Justice that the act was considered 
to be unconstitutional and Congress was so advised. 


137. States adhering to the Court Statute but disassoci- 
ated from joint political endeavors in Europe appear to lack 
the protection afforded to members of the League: It may 
be assumed that no general treaty and no special treaty, laying 
duties upon the Court, will be consummated without the assent 
of one or more of the permanent members of the Council. 
The functioning of these states in the negotiation of regional 
security pacts and general security conventions grant to them 
a practical directing voice as to what duties will be laid upon the 
Court. It may be assumed, also, that, failing to draw the 
United States into participation in the affairs of the League or 
into commitments under these conventions, the tendency will be 
to concentrate in the Court the performance of duties, to the 
success of which the adherence of the United States will con- 
tribute. For instance, opposition may be raised by the United 
States to the concentration in the League of the supervision 
over the regulation of the sale of armaments; but there can 
be no effective protest against the assumption of the duty by the 
Court. To the proposal for the appointment by the Council 
of a military head to direct the application of a joint sanction 
against a violator of the Covenant the United States may remain 
indifferent; but what will be its position should the President 
of the Court be authorized to make such appointment on the 
ground that the joint military command will be enforcing the 
opinions or decisions of the Court? Nevertheless, there is no 
provision which prevents such a contingency; and if it be said 
that the wisdom of the Court is a sufficient safeguard, there 
remains the difficulty revealed by the Italo-Greek dispute. In 
view of the broad provisions of paragraph 1 of Article 36 of 
the Statute, which apparently permits states to lay any duties 
they see fit upon the Court, and in the absence of any definite 


NON-JUDICIAL MATTERS ai 


rule to guide the Court in its determination of acceptance or 
rejection thereby constituting a safeguard for the Court itself, 
it seems that there should be an amendment to Article 36, re- 
storing the language proposed by the Advisory Committee of 
Jurists ; or that the United States, in its act of adherence, should 
state its understanding of Article 36 to be that its provisions 
will not be held to extend to performance of non-judicial duties, 
except with the explicit consent of a majority of the signatories 
to the Court Statute, including the United States. 


CHAPTER X 
ADVISORY OPINIONS UNDER THE COVENANT 


138. The Court possesses advisory jurisdiction: This ju- 
risdiction comprises the authority of the Court to grant advisory 
opinions to the Council or Assembly upon their request, and is 
conferred by Article 14 of the Covenant which provides that 
“the Court may also give an advisory opinion upon any dispute 
or question referred to it by the Council or by the Assembly.” ? 
There is no reference in the Statute to advisory opinions but 
Article I provides that the Court is established in accordance 
with Article 14 of the Covenant; and Article 36 provides that 
the Court has jurisdiction over any matter specially provided 
for in treaties and conventions in force. These clauses are 
deemed sufficient to authorize the Court to render opinions as 
specified in Article 14 of the Covenant whenever requested by 
the Council or by the Assembly. 


139. The absence of reference in the Statute is due to 
action taken by the Assembly: The Advisory Committee of 
Jurists was of the opinion that Article 14 of the Covenant was 
mandatory and that the questions referred for an opinion were 
to be international. Accordingly, an Article was inserted in 
the draft Scheme to the effect that “the Court shall give an 
advisory opinion upon any question or dispute of an inter- 


1 The French version of the text uses the verb “will” (donnera) in 
place of “may,” raising the question whether the authority conferred 
upon the Court is mandatory. See Annex I for opinion rendered in 
the matter of Eastern Carelia; and opinions requested concerning the 
oecumenical Patriarch and Iraq boundary. 

104 


ADVISORY OPINIONS UNDER COVENANT 105 


national nature referred to it by the Council or Assembly.” ? 
The Committee also differentiated between theoretical questions 
and actual disputes and provided a special procedure when a 
question did not form the subject of an actual dispute; but 
opinions were to be given in the same manner as judgments 
when an actual dispute was involved. The Report of the Com- 
mittee made it clear that in such a case each party in interest 
should have a national on the Court. The entire Article was 
suppressed by the First Assembly on the ground that it was 
lacking in clearness and likely to give rise to practical difficulties. 
It was stated that there was no need to maintain the distinction 
between the two classes of questions and that the draft Scheme 
entered into details which concerned rules of procedure. For 
these reasons the Statute remains silent. | 


140. The origin of this provision appears to have been 
British: The practice of obtaining advisory opinions from 
judges, as a precautionary measure against invalid executive or 
legislative action, had its inception centuries ago in England. 
The King, as well as the House of Lords, whether acting in a 
judicial or legislative capacity, had the right to demand the 
opinion of the twelve judges of England. The practice with 
respect to the King is not now exercised but the right of the 


2The text of the proposal, made by the Advisory Committee of 
Jurists, follows: 

The Court shall give an advisory opinion upon any question or 
dispute of an international nature referred to it by the Council or 
Assembly. 

When the Court shall give an opinion on a question of an inter- 

* national nature which does not refer to any dispute that may have 
arisen, it shall appoint a special commission of from three to five 
members. 

When it shall give an opinion upon a question which forms the 
subject of an existing dispute, it shall do so under the same conditions 
as if the case had been actually submitted to it for decision, (Article 
36 of draft Scheme.) 


106 THE SENATE AND THE COURT 


House of Lords to put abstract questions of law to the judges, 
the answer to which may be necessary to it in its legislative 
capacity, still prevails. The clause concerning advisory 
opinions did not appear in the first published draft of the Cove- 
nant but the recommendation formed part of the British draft 
for a Covenant presented by Viscount Cecil to the Commission 
on the League of Nations.* When the final draft of the Cove- 
nant was submitted to the Peace Conference at Paris, the 
customary British practice of advisory opinions was incorpo- 
rated and enlarged. 


141. The practice followed by the Council under Article 
14 is a departure from the English rule: While there have 
been certain departures from the rule, namely under the Stuart 
Kings, wherein opinions were requested from the judges upon 
matters about to come before them for judgment, the general 
practice has been to request such opinions upon legislative 
matters and abstract questions of law. The practice followed 
by the Council is quite the contrary. When important matters 
of legislation, such as the Treaty of Mutual Assistance and 
the Geneva Protocol, have been before the Assembly, con- 
sultative services were rendered by committees of jurists. 
When the Council has been formulating important conventions, 
the Court’s opinion upon legal or constitutional questions has 


3 See Chapter XI on Advisory Opinions in the United States. 
4 Article 7 of the British draft of the Covenant provided: 

Where the Conference or the Council finds that the dispute can 
with advantage be submitted to a court of international law, or that 
any particular question involved in the dispute can with advantage be 
referred to a court of international law, it may submit the dispute 
or the particular question accordingly, and may formulate the ques- 
tions for decision, and may give such directions as to procedure as it 
may think desirable. In such case, the decision of the Court shall 
have no force or effect unless it is confirmed by the report of the 
Conference or Council. (Woodrow Wilson and World Settlement, 
by Ray Stannard Baker, Vol. III, p. 137. 


ADVISORY OPINIONS UNDER COVENANT 107 


not been ascertained. When the question of interpreting the 
Covenant arose in the Italo-Greek dispute, members of the 
Council stated that the interpretation of constitutional questions 
was not within the province of the Court but was rather a matter 
for the Council or Assembly to decide. The rule followed by 
the Council, therefore, differs from the English rule in that 
advisory opinions are not used for legislative matters or ab- 
stract questions of law. 


142. Only the Council or Assembly may request advisory 
opinions: While both bodies have an equal right, the Council 
has exercised it exclusively, having requested every one of the 
twelve opinions. This exclusive practice has become possible 
through the advantage possessed by the Council in the matters 
of procedure and frequency of meetings. The exclusion of the 
Assembly is, however, a matter of policy as is indicated by the 
Geneva Protocol, adopted unanimously by the Fifth Assembly, 
wherein requests for advisory opinions were to be limited to 
the Council and its committees on arbitration. On this point, 
the General Report, accompanying the Protocol, stated that ‘the 
transmission of a question to the Permanent Court of Inter- 
national Justice must always be entrusted to the Council be- 
cause, in practice, the latter is the only body competent for 
such purposes.” 5 


143. States and international organizations may obtain 
advisory opinions through the Council or Assembly: At 
the time of the drafting of the Statute, Argentina submitted a 
proposal that states be granted this privilege but the proposal 
was rejected by the Third Committee of the First Assembly 
on the ground that the right of a state to obtain such opinions 
might lead to an indirect way of introducing obligatory juris- 
diction or unilateral arraignment. The International Labor 
Office suggested an amendment to the effect that the Court 


5 League of Nations Doc., A. 135, 1924, p. II. 


108 THE SENATE AND THE COURT 


should give an advisory opinion upon any question or dispute 
of an international nature referred to it by the Council or 
Assembly or by the Administrative Council of the International 
Labor Bureau or by the General Labor Conference. This pro- 
posal was rejected. The rule, therefore, is that any state or 
organization desiring to obtain an opinion from the Court must 
do so through the Assembly or the Council, and preferably the 
latter. 


144. Agreements to submit matters for advisory opinions 
have been entered into between the Council and certain 
states: An illustration is afforded by the agreement concern- 
ing the Aaland Islands, concluded between Finland, Sweden 
and the Council annexed to the Resolution of the Council of 
June 24th, 1921, wherein the Council made its award in the 
Aaland Islands dispute. The agreement provides that the Coun- 
cil is to watch over the application of the guarantees contained 
in the Resolution; that Finland shall forward to the Council, 
with its observations, any petitions or claims of the Assembly 
of Aaland in connection with these guarantees; and the Council 
shall, in any case where the question is of a juridical character, 
consult the Court. In another instance, Latvia on July 7th, 
1923, in making a declaration to the Council on the subject 
of the protection of minorities, reserved the right to request 
that differences of opinion on questions of law or fact, arising 
from the declaration, be referred to the Court for an advisory 
opinion. Esthonia also made a declaration to the Council con- 
cerning the protection of minorities, which declaration was 
accepted by a Resolution of the Council on September 17th, 
1923. The resolution provides that any differences of opinion 
with regard to it may be referred to the Court for an advisory 
opinion. These provisions appear to arise from a desire upon 

6In the case of Latvia and Esthonia these Declarations were exacted 
as conditions of admission to the League. (See Security Against War, 
pp. 43, 80.) 


ADVISORY OPINIONS UNDER COVENANT 109 


the part of small states to make mandatory upon the Council 
the consultation of the Court upon legal questions in matters 
wherein the Council acquires the right to interfere in the 
domestic affairs of a state; thereby safeguarding in a measure 
a state from possible political interference by the Council. 


145. The scope of the questions to be submitted is unlim- 
ited: The Advisory Committee of Jurists limited this scope to 
international cases or questions. The present broad provisions 
make it possible to request an opinion upon any subject— 
domestic or national—legal, economic, social or military; and 
to submit any controversy for such opinion. As has been seen, 
advisory opinions may take precedence over other forms of 
jurisdiction; for the Council may request an opinion concern- 
ing matters which states have agreed to submit for judicial 
decision under obligatory jurisdiction; or the Council may inter- 
vene at any point between the parties and the Court. 


146. The consent of the parties in interest is not neces- 
sary for the submission of a question to the Court for an 
opinion: There is no consistent rule, for the matter is discre- 
tionary with the Council whether states or parties shall consent 
to submission. In the matter of the Netherlands delegate, the 
consent of the Netherlands Government was not obtained. In 
the matter of the agricultural labor disputes, the consent of the 
Governing Body of the International Labor Office was not 
obtained. In the matter of Eastern Carelia, the consent of 
Russia was not obtained. In the matter of the German Set- 
tlers in Poland, the consent of Germany was not obtained and 
Poland opposed the submission up to the last moment. In the 
matter of the Tunis and Morocco Nationality Decrees, the con- 
sent of Great Britain and France was obtained. In the matter 
of Jaworzina and the Monastery of Saint Naoum, the consent 
of the Conference of Ambassadors and of the states involved 


110 THE SENATE AND THE COURT 


was obtained. In the matter of the Exchange of Greek and 
Turkish Populations the Turkish and Greek Governments 
agreed to the submission. In the matter of the Danzig Postal 
Service the two contesting parties appear to have agreed. In 
the matter of the Turkish Iraq boundary, Great Britain appears 
to have agreed, but the Turkish Government is not represented 
in the proceedings of the Court.’7. The rule is established that 
the Council may, if it so desires, submit a question without the 
consent of the parties involved.® 


147. The question may be framed either by the parties 
or by the Council: In the matter of the Netherlands delegate, 
the International Labor Office framed the question. In the 
matters concerning agricultural workers and agricultural re- 
search, France and the Council framed the question over the 
protest of the Director of the International Labor Office. In 
the matter of the Tunis and Morocco Nationality Decrees, the 
two parties appear to have framed the question. In other cases 
submitted for advisory opinions, the question was framed by 
the Council and the resolution containing the question was 
read in the presence of the parties wherever such parties were 
members of the League and were represented in accordance: 
with Article 4 of the Covenant. The Geneva Protocol under- 
took to frame a rule to the following effect: When the parties 
agree to arbitrate they will frame the question; when only one 
party is in favor of arbitration it and the Council will frame 
the question; but when both parties fail to ask for arbitration 
then the Council will have full rights to frame the question 


7 Official records are not yet available in this case. 

8On this point Mr. P. J. Noel Baker, in his recent volume, The 
Geneva Protocol, observes— “However much one party may resent a 
demand by the other for an advisory opinion, it is almost impossible for 
it to resist it publicly * * * but even if such resistance occurred, the 
Council would almost certainly overrule it.’ * * * (p. 42.) 


ADVISORY OPINIONS UNDER COVENANT 111 


for submission to the Court for such an advisory opinion. 


148. Whether the vote of the Council shall be unanimous 
in taking a decision to request an advisory opinion is not 
determined: According to Article 5 of the Covenant, deci- 
sions require the agreement of all the members represented 
at the meeting except when otherwise provided for. The ex- 
ceptions relate to matters of procedure and to decisions taken 
by the Council under Article 15 in matters submitted to it for 
inquiry. Article 4 of the Covenant provides that any member 
of the League, not represented on the Council, is entitled to be 
represented during the consideration of all matters affecting 
its interests and that each member represented on the Council 
shall have a vote. The Council may decide to request an 
advisory opinion in cases arising under Article 11 where it 
seems unanimity, including the vote of the parties, is required; 
or in connection with an arbitration under Articles 12 and 13, 
where the rule is uncertain unless the usual arbitral rule of a 
majority prevails; or in connection with an inquiry, under 
Article 15 where it is specifically stated that unanimity does 
not include the vote of the parties. But all of these rules are 
subject to the question whether the request for an opinion may 
be regarded as one of procedure. If so, a majority vote is 
sufficient for submission.° It appears, however, that no pro- 
vision is made for representation by a non-member state which 


® The assignment of the right to frame the question for submission 
to arbitration is not generally acceptable to states. For the reservation 
made by the United States on this subject, in its ratification of the 
Hague Convention of 1907, see p. 76. 

10 Mr. P. J. Noel Baker, in The Geneva Protocol, states that the 
Council can make no recommendation under Article 11 of the Covenant 
except with the consent of the parties represented (p. 79); and that 
unanimity is not necessary in requesting an advisory opinion, for the 
Council could as a matter of procedure and by majority vote ask for 
such an opinion (p. 42). 


112 THE SENATE AND THE COURT 


is a party, nor for the inclusion of its vote.4 The question 
is one of considerable importance, involving the right of the 
Council to proceed without the consent of the state. 


149. The Court regards as discretionary its duty to grant 
advisory opinions: Following the English version of Article 
14 of the Covenant, the Court has adopted the principle that 
it may exercise discretion in granting advisory opinions. The 
issue was presented in the matter of the Status of Eastern 
Carelia which involved Russia, a non-member of the League 
and not a signatory to the Covenant under which the Court 
was asked by the Council to grant an opinion. The Court de- 
clined to give an opinion upon the question submitted, on the 
ground that to do so would be to violate a clear rule of inter- 
national law, namely, that no state may be bound to submit 
a dispute to pacific settlement under an instrument to which 
it is not a party.’? 

150. The Council regards as mandatory the obligation 
laid upon the Court to render opinions: Three-fourths of 
the business of the Court has consisted of rendering advice to 
the Council.1* All of the matters submitted have involved an 

11 The question submitted to the Court in the matter of Iraq con- 
cerns the interpretation of the unanimous vote. A judicial opinion, 
having a bearing upon the general question of unanimity may be the 
result. See Annex I for the precise questions involved. 

12 This opinion was rendered by a divided Court, there being four 
dissenting judges; M. Weiss (France), M. Nyholm (Denmark), M. de 
Bustamente (Cuba), and M. Altamira (Spain). A change in two 
votes in favor of a contrary rule is, therefore, necessary to reverse 
this opinion. See Annex I. 

13 The questions submitted were the following: 

(1) Seating of the Workers’ Delegate from the Netherlands; (2) 
Competence of the International Labor Organization in regard to 
agricultural labor. (3) Competence of the International Labor Or- 
ganization to examine proposals for the development of methods of 
agricultural production. (4) Nationality Decrees in Tunis and 
Morocco. (5) Status of Eastern Carelia. (6) German Settlers in 


ADVISORY OPINIONS UNDER COVENANT 113 


actual right. In but one instance, that of Eastern Carelia, has 
the Court declined to render an opinion on the questions sub- 
mitted. On this occasion it established its right to exercise 
its discretion, a position with which the Council is not in accord. 
At a meeting wherein the Council considered this opinion it 
discussed the adoption of a resolution stating its conviction that 
the opinion expressed by the Court in connection with the pro- 
cedure prescribed in Article 17 of the Covenant, cannot exclude 
the possibility of resort by the Council to any action, including 
that of requesting an advisory opinion, on a matter in which 
a non-member of the League was unwilling to give information, 
if the circumstances made such action necessary. As this res- 
olution appeared to remonstrate with the Court, the Council 
contented itself with merely noting the opinion; but this con- 
clusion was reached only after Viscount Cecil had made it 
clear that the opinion of the Court was not intended to lay down 
any general rule of law to be applied by the Court in future 
matters.“* The fact that the Council was not in a position to 
coerce Russia, as provided for under Article 17 of the Covenant, 
is not to be construed as an acceptance in principle of the view 
of the Court. 

151. The Court has had formulated the general conclu- 
sions underlying advisory practice: These are to be found 
in a memorandum prepared by Mr. Moore at the request of 

territory ceded to Poland. (7) Acquisition of Polish nationality. 

(8) Delimitation of the Polish-Czechoslovakian frontier at Jawor- 

zina. (9) Delimitation of the Albanian boundary at the Monastery of 

Saint Naoum. (10) Exchange of Greek and Turkish populations. 

(11) Polish postal service in Danzig. (12) The Iraq boundary. 

14 The Council, in retaining its right to reopen the question, appar- 
ently followed the French version of Article 14 of the Covenant as 
interpreted by the Advisory Committee of Jurists and by the Third 
Committee of the First Assembly, to the effect that the Court shall give 
an opinion. See also, the Patriarch and the Iraq boundary wherein the 
Council has requested an opinion concerning a non-member State. An- 
nex I. 


114 THE SENATE AND THE COURT 


the Court. The conclusions are as follows: 1° (1) The consti- 
tution of the Court contains no express provision for advisory 
opinions, an article to regulate such opinions being deliberately 
rejected. (2) A consideration of the two official texts (Article 
14 of the Covenant) where alone the subject is mentioned, can- 
not be regarded as imposing on the Court an obligation to render 
such opinions. (3) The giving of advisory opinions, in the 
sense of their having no obligatory character, either in actual 
disputes or on theoretical questions, is not an appropriate func- 
tion of the Court of Justice. (4) The exercise of the function 
of giving advisory opinions is at variance with the design of 
the Court which is to advance between nations the principle and 
method of judicial decision. (5) Opinions having no binding 
force would iend, not only to obscure but also to change, the 
character of the Court. (6) Opinions will necessarily diminish 
the judicial opportunities of the Court, for if the opinions are 
treated as binding they tend to preclude subsequent submission 
for judicial decision; while, if disregarded, they tend to bring 
the Court into disrepute. (7) Advisory opinions tend to pre- 
vent the Court from performing one of its primary func- 
tions, namely, contributing through its jurisprudence to the 
development of international law. (8) Such opinions would, 
so far as concerns the interests of particular nation$, involve 
the possibilities of prejudice which led to the insertion in the 
Statute of the clause for the intervention of governments in 
pending litigation. (9) The Court should not seem to invite 
requests for advisory opinions. (10) There should be no 
special regulations concerning advisory opinions but the Court 
should deal with each application according to its nature and 
merits, 


152. With these conclusions the Council appears not to 
be in entire accord: The Council believes that the Court 


15 PC, of I. J., Series D, No. 2; Pp. 397. 


ADVISORY OPINIONS UNDER COVENANT | 115 


should give an opinion whenever requested ; the Court held that 
it may exercise its discretion when there is a clear rule of law 
to the contrary. The Council believes that the chief function 
of the Court should be advisory to its adjudications; the 
memorandum regards this tendency as a limitation upon the 
judicial opportunities of the Court. The Council desires to re- 
tain general control over the settlement of disputes, strengthen- 
ing its position with opinions from the Court on legal questions ; 
the memorandum views this tendency as possibly altering the 
fundamental design of the Court which is to advance between 
nations the principle and method of judicial decision. The 
divergence in views suggests the necessity for a more precise 
delimitation of the duties of the three branches of the League. 


153. The Rules of the Court prescribe no fixed procedure 
for advisory opinions: Contrary to the prevailing belief, there 
is no prescribed procedure to be followed in the rendering of 
advisory opinions. The Covenant and the Statute remain silent, 
leaving to the Court full authority to prescribe the procedure. 
This may take a general form to be applied to all disputes or it 
may vary for each controversy. The rules adopted are in ac- 
cordance with the memorandum which concluded that the matter 
should be left open® They provide: (1) The full Court 
shall render opinions. (2) The opinions of dissenting judges 
shall be attached to the opinion of the Court. (3) Questions 
upon which an advisory opinion is requested shall be laid before 
the Court by means of a written request from the President 
of the Assembly or Council, or from the Secretary-General of 


16 On this point, the memorandum by Mr. Moore concludes: “Taking 
into account the various phases of the subject, it may be preferable 
that there should be no special regulation concerning advisory opinions, 
but that, if an application for such an opinion should be presented, the 
Court should then deal with the application according to what should 
be found to be the nature and the merits of the case.” (P. C. of I. J., 


Series D, No. 2; p. 398.) 


116 THE SENATE AND THE COURT 


the League, acting under instructions from either of these 
bodies. (4) The request shall contain an exact statement of 
the question and shall be accompanied by documents throwing 
light on the subject. (5) The Registrar shall notify all mem- 
bers of the League and states mentioned in the Annex to the 
Covenant and the parties of the request; also, any international 
organizations which are likely or able to furnish information. 
(6) Any opinion which may be given, together with the re- 
quest therefor, shall be printed and published.’’ 


154. The Court has thus far followed a procedure similar 
to that laid down in the Statute for judgments: Representa- 
tives of the states whose interests are affected, agents and 
counsel are permitted to appear and present arguments and 
briefs in the same manner as when a judgment is involved. 
The adoption of this temporary procedure is responsible for the 
belief that advisory opinions constitute judicial decisions. 


155. Certain rules of procedure laid down in the Statute 
for judicial decisions are not applicable to advisory opin- 
ions: Instances include the following: (1) In an advisory 
proceeding, even one involving an actual controversy, a party 
having no national on the Court is not entitled to appoint one 
although the other party may retain its national if one is already 
on the Court. (2) Recourse cannot be had to special chambers 
for labor or transit or for summary procedure in an advisory 
proceeding, owing to the rule that the full Court shall render 
the opinion. (3) A party having a legal interest cannot inter- 
vene; but it is entitled to be heard.t8 (4) The Court may not 

17 Rules 71-74 of the Permanent Court of International Justice. 

18 On this point, Mr. Moore concludes in his memorandum: 

That the rendering of such opinions would, so far as concerns the 
views or interests of particular nations, involve all the possibilities of 
prejudice which led to the insertion in the Statute of the clause pro- 
viding for the intervention of governments in pending litigation. 
(P. C. of I. J., Series D, No. 2; p. 398.) 


ADVISORY OPINIONS UNDER COVENANT 117 


propose provisional remedies pending a decision, for it is con- 
fined to the precise question submitted. (5) The rule with re- 
spect to deciding a matter ex aequo et bono does not apply, for 
there are no parties. (6) The opinion, being limited to the 
precise matter involved in the question submitted, the Court may 
not prescribe a legal remedy. It is not, therefore, a fair in- 
ference that states have identical rights under both procedures 
especially as concerns intervention.” 


156. An advisory opinion is not generally regarded as the 
exercise of a judicial function: There is no dictum to this 
effect; but in the memorandum prepared by Mr. Moore at the 
request of the Court he made a distinction between opinions 
and judgments. In his conclusion he states that “the emission 
of such opinions would necessarily diminish the opportunities 
for the exercise by the Court of its judicial functions.” 7° It 
may also be pointed out that Article 14 of the Covenant does 
not limit to judicial matters the questions to be submitted to 
the Court for an opinion and the Court may, therefore, be 
called upon to consider matters which are not of a judicial 


19 A request for intervention was made by Roumania in the matter 
of the acquisition of Polish Nationality (Opinion No. 7), on August 
25th, 1923, under Articles 62 and 63 of the Statute and under Articles 
58-60 of the Rules on the ground that inasmuch as the Polish and 
Roumanian Minority Treaties contained identical provisions, an inter- 
pretation by the Court of the former instruments affected the interests 
of the latter. The reply of the Court, however, states that the question 
of interpreting Article 4 of the Polish Minority Treaty, being submitted 
to the Court only for advisory opinion, Articles 62 and 63 of the 
Statute and Articles 58-60 of the Rules cannot be considered applicable. 
At the same time the Court indicated its willingness to hear the Rou- 
manian representative under Article 73 of the rules of the Court under 
which states and organizations may furnish information to the Court. 
CP) CC? of FY. Series C, No. 33°Volclil, p.iro8o. 

20P. C. of I. Ji, Series D, No. 2; p. 398. 


118 THE SENATE AND THE COURT 


nature. It is contended that because the Court has thus far 
applied to opinions the procedure which it is required to use 
for judgments, that in itself constitutes the rendering of an 
opinion a judicial function. In answer to this contention it may 
be observed that the procedure for judgments is prescribed in 
the Statute and is mandatory upon the Court to apply, whereas 
no procedure whatever is prescribed for advisory opinions 
either in the Statute or in the rules adopted by the Court. 
This means that the Court occupies the same position as an 
arbitral tribunal; for it may adopt for any question submitted 
for an opinion any procedure which it sees fit; except in an 
arbitral tribunal the parties have a voice in its selection. A 
procedure, resting wholly in the discretion of the Court is not 
of the stable quality required by the Statute for a judicial 
function. Advisory opinions appear, also, to be lacking in 
certain other essentials of a judicial function. They do not 
conclude nor vindicate any right; they result in no judgment 
and no decree; they are binding upon no one; and they possess 
no certain sanctions. The matters before the Court illustrate 
the difference In the judgment concerning the S. S. “Wimble- 
don,” the Court decided that Germany had violated the Treaty 
of Versailles and it assessed the exact damages to be paid. 
In the judgment concerning the Mavrommatis case, the Court 
determined the precise rights under the Mandate and under the 
Concessions Protocol and Great Britain agreed to observe the 
terms of the judgment. On the other hand, in the opinion 
concerning the German settlers in Poland, the Court determined 
a question of law but had nothing whatever to say concerning 
the reinstatement or compensation of the settlers who had been 
evicted. In the opinion concerning the acquisition of Polish 
nationalities, the matter dealt with therein was later submitted 
to arbitration. In the opinion concerning the Monastery of 
Saint Naoum the Court supported the decision taken by the 
Conference of Ambassadors which body afterward, in agree- 


ADVISORY OPINIONS UNDER COVENANT 119 


ment with the parties, reversed its own decision. In the 
opinion concerning the Danzig Postal Service, the application 
of an opinion of the Court depended upon a delimitation of 
territory, not prescribed at the time of the opinion, but which 
territory the Court was not permitted to delimit. For these 
practical reasons it is demonstrable that the exercise of advisory 
jurisdiction is not a judicial function as it is ordinarily under- 
stood in the United States.”* 


157. Advisory opinions do not in themselves constitute a 
settlement of disputes between parties, for they are incom- 
plete and they are not final: Under the prevailing practice, 
an opinion ordinarily determines a legal question which has 
arisen in the course of an adjudication. Such an opinion may 
be requested through the Council by other tribunals, as, for 
instance, arbitral tribunals; or by the Conference of Ambas- 
sadors as occurred in the disputes concerning Jaworzina and 
Saint Naoum; or it may be requested, when a deadlock occurs 
in diplomatic negotiations as in the matter of the Nationality 
Decrees in Tunis and Morocco; or it may be requested by the 
Council in the course of its own adjudications. The primary 
object of an advisory opinion is to settle a point of law, thus 
advising the Council or other tribunals how to proceed with the 
settlement ; 2? or to re-establish amicable relations between the 
parties. Its advantage is that it provides an additional step 
enabling the parties or other tribunals to proceed with a settle- 
ment; its disadvantage is that it deprives the Court of an op- 
portunity to apply judicial decisions to the merits of the con- 
troversy and thus advance the cause of justice. 


158. Opinions are not binding: The Council or Conference 
or other tribunal seeking the opinion is free to accept, reject, 


21See succeeding chapter on Advisory Opinions in the United 


States. 
22 An instance is afforded in the matter of the Iraq boundary. 


120 THE SENATE AND THE COURT 


modify or adapt the opinion. An opinion has no validity, 
whatever, except through the affirmative act of the body re- 
questing it. When an opinion is received from the Court, the 
Council may transmit it to the parties without recommenda- 
tion as it did in the labor controversies; or the Council may 
transmit the opinion with a recommendation as it did in the 
matters of Saint Naoum and Jaworzina to the Conference 
of Ambassadors; or the Council may interpret the opinion 
in terms of a recommendation as it did in the matter of the 
Polish settlers; or the Council may leave the matter to the 
parties as it did in the matter of the Nationality Decrees in 
Tunis and Morocco; or, finally, the Council may leave the mat- 
ter in abeyance as occurred in the matter of Eastern Carelia. 
The rule is that an opinion has no binding effect except as 
the parties or the Council or other tribunal voluntarily em- 
bodies its substance in an award or an agreement. 


159. For members of the League advisory opinions are 
applicable within the terms of the Covenant: When the 
Council, by resolution, makes a recommendation embodying 
the substance of the opinion, that recommendation is con- 
ditioned by the Covenant and has precisely the same applica- 
bility as recommendations made without the advice of the 
Court. States may, therefore, refuse to accept the recom- 
mendation and proceed to war; or if one accepts the recom- 
mendation, the other party is bound not to resort to war. The 
rule is that, in the absence of special agreements to the con- 
trary as, for instance, acceptance of the opinion in advance, 
the obligations assumed by members under the Covenant con- 
dition the application of advisory opinions to members of the 
League. For non-members refusing its jurisdiction, the Court 
will grant no opinion, if it follows the Eastern Carelian pre- 
cedent; for non-members accepting its jurisdiction, the pro- 
visions of Article 17 of the Covenant will apply. 


ADVISORY OPINIONS UNDER COVENANT 121 


160. None of the matters submitted for an advisory opin- 
ion has been submitted subsequently for a judgment: Of 
the eleven matters wherein an advisory opinion has been ren- 
dered all have involved a legal question affecting an actual con- 
troversy. Some of these controversies were suitable for 
submission for a judicial decision, but were withheld primarily 
by reason of their alleged political character. It is, therefore, 
a fair inference that the chief business of the Court has been 
that of a consultative character. 


161. The Rules of the Court preclude its rendering secret 
or confidential opinions: Present apprehension on this score 
should be set at rest by the rule adopted by the Court wherein 
the request must come in writing from the Council; it is cir- 
culated to members of the League; and all opinions are pub- 
lished. So long as the rule endures, there is no danger of secret 
opinions ; but it is subject to alteration by the Court. 


162. Proposals in the United States indicate a division 
of opinion: The Harding-Hughes proposal makes no refer- 
ence to advisory opinions.** The late President Harding, in 
an address delivered in St. Louis on June 21st, 1923, following 
the submission to the Senate of the Harding-Hughes proposal, 


23Tn an address delivered before the American Society of Interna- 
tional Law on April 27th, 1923, Mr. Hughes is reported to have stated 
that: “the Court recognizes that it may be called upon by the Council 
er Assembly of the League for advisory opinions. This is a practice 
similar to that which has obtained in most of the states of New Eng- 
land from Colonial days. It now obtains in Massachusetts, New 
Hampshire, Maine, Rhode Island, Florida, Colorado, and South Dakota. 
The Permanent Court of International Justice has adopted rules upon 
this subject so as to assimilate the process so far as possible to a 
judicial proceeding, and especially so as to exclude any supposition 
that advisory opinions may be rendered in a diplomatic sense and without 
publicity.” From this statement it may be inferred that Mr. Hughes 
believed a reservation concerning advisory options to be unnecessary. 


122 THE SENATE AND THE COURT 


suggested that advisory opinions either be abolished or extended 
to states.24 This proposal has not been incorporated in any 
recommendations submitted to the Senate. When Mr. Cool- 
idge acceded to the presidency, he adopted the proposals in 
the Harding-Hughes plan; but he has made no pronouncement 
concerning advisory opinions.?> The Republican party plat- 
form, in 1924, contained an endorsement of this stand, making 
the issue a party matter.° Senator Pepper’s resolution, pro- 
viding for a separation of the Court from the League, elim- 
inated in Article 1 of the Statute the reference to Article 14 
of the Covenant which may be construed as relieving the Court 
of the obligation to render such opinions. Senator Lodge’s 
resolution, having also for its object the separation of the 
Court and the League, added a section to the Statute wherein 
it restricted the application of advisory opinions concerning 


24 Text of Mr. Harding’s reference follows: 

“The exclusive privilege now held by the League to seek advisory 
legal guidance from the Court might either be abolished, or, more 
wisely, perhaps, be extended to any member or group of member 
nations. Thus all would be served alike, subject as now to de- 
termination by the Court itself of the kind of questions upon which 
it would render judgments.” 


25 In an address delivered at Arlington on May 30th, 1924, the Presi- 
dent is reported to have said: “I should not oppose other reservations, 
but any material changes which would not probably receive the consent 
of the many other nations would be impractical.” 


26 The provision in the Republican platform was as follows: 

“The Republican Party reaffirms its stand for agreement among 
the nations to prevent war and preserve peace. As an important 
step in this direction we indorse the Permanent Court of Interna- 
tional Justice and favor the adherence of the United States to this 
tribunal as recommended by President Coolidge. This Government 
has definitely refused membership in the League of Nations and to 
assume any obligations under the covenant of the League. On this 
we stand.” , 





ADVISORY OPINIONS UNDER COVENANT 123 


issues involving the United States.27 Senator Swanson, in his 
first resolution embodying the Harding-Hughes proposals, made 
no reference to advisory opinions; but the second resolution 
contained a provision intended to safeguard the interests of 
the United States. The phrasing of this provision appears 
to permit of a certain ambiguity.”* It conveys the impression 
that there is some provision in the Statute which will enable 
the United States to join in a request for an advisory opinion. 
The Statute contains no reference whatever to advisory opin- 
ions. Should the United States desire to join in the request 
for an advisory opinion, it will make its request to the Council 
in the same manner as do other states or organizations under 
Article 14 of the Covenant. It may do so without adherence 
to the Statute, the will of the Council being supreme. The 
proposed amendment offers no protection against the exercise 
of the right of the Council to request an opinion concerning 
matters affecting the interest of the United States and it 


27 The text of this Article is as follows: 

The Court shall not have jurisdiction to render advisory opinions 
on any question which affects the admission of aliens into the United 
States, or the admission of aliens to the educational institutions of 
the several states or the territorial integrity of the several states of 
the United States or concerning the question of the alleged indebted- 
ness or money obligations of any state or the United States or any 
question which depends upon or involves the maintenance of the 
traditional attitude of the United States concerning American ques- 
tions, commonly described as the Monroe Doctrine, or other purely 
governmental policy or any question which is considered by the Gov- 
ernment of the United States to be a domestic question. 

28 The text of the Article follows: 

The United States shall be in no manner bound by an advisory 
opinion of the Permanent Court of International Justice not ren- 
dered pursuant to a request in which it, the United States, shall ex- 
pressly join in accordance with the Statute for the said Court 
adjoined to the Protocol of Signature of the same to which the 
United States shall become signatory. 


124 THE SENATE AND THE COURT 


offers no protection against consideration by the Court of the 
request. What is needed is an understanding whereby the 
Council will not undertake to submit a question to the Court 
without the consent of the United States. 


163. The position of the Court in the matter of Eastern 
Carelia does not offer a sufficient guarantee for non-member 
states: In that opinion the Court held that it had no jurisdic- 
tion under international law when a non-member of the League 
declined to submit to its jurisdiction, inasmuch as it was not 
a signatory to the Covenant under which the question was 
submitted. This opinion is subject to reversal, having been de- 
livered by a divided Court after considerable debate. That 
occasion for such reversal may arise, was proved in March, 
1925, when the Council submitted for an advisory opinion, 
upon request of Greece, the question of the expulsion of the 
Oecumenical Patriarch from Constantinople, over the protest of 
Turkey, which country refused to appear before the Court. 
An embarrassing situation was prevented by withdrawal of the 
Greek appeal. 


164. None of the proposals now pending in the Senate 
affects questions of fundamental concern to the United 
States: The references to advisory opinions in the pending 
proposals in no way affect the fundamental questions raised 
in Mr. Moore’s memorandum which are a chief concern of 
the United States, namely: (1) The giving of advisory 
opinions, having no obligatory character, is not an appropriate 
function of the Court; (2) the exercise of advisory functions 
does not advance the application of the principle and method 
of judicial decision; (3) the emission of opinions having no 
binding force will change the character of the Court; (4) the 
granting of such opinions is diminishing the judicial oppor- 
tunities of the Court; and (5) the excess of opinions over 


ADVISORY OPINIONS UNDER COVENANT | 125 


judgments hampers the contribution of the Court to the develop- 
ment of international law. To these obvious dangers may be 
added that of the Court as legal adviser to the Council in the 
settlement of disputes which are within the competence of 
the Court to settle; the possible extension of advisory opinions 
to cover all forms of jurisdiction including obligatory; the sub- 
mission of matters affecting parties or states without their 
consent; and, finally, vesting in a few states the exercise of a 
privilege, on its own terms, which all other states must ac- 
cept if they would obtain advice from the Court. Therefore, 
if the United States desires to perpetuate the principles that 
national judges shall sit on the Court for all parties or no 
parties, that states and not agencies of the League shall have 
the right to opinions; that opinions shall not be sought in lieu 
of judgments in matters affecting the rights of parties; that 
states must consent if opinions are to be requested concerning 
their affairs; that intervention shall be permitted if the rights 
of a state are actually involved—then the Senate will state 
its understanding at the time of adherence. If, however, the 
United States desires to support other principles and to entrust 
to ten states a monopoly over the advisory competence of the 
Court, the subject will be ignored in the United States reserva- 
tions and the United States may find itself in the position of 
certain of the Baltic states wherein, through conventions and 
treaties, they seek to limit the application of advisory opinions, 
under Article 14, to matters which do not infringe upon their 
national rights or domestic affairs. 


CHAPTER XI 


ADVISORY OPINIONS IN THE UNITED STATES 


165. The Federal Judiciary does not offer a precedent for 
the practice of advisory opinions in the Permanent Court 
of International Justice: The question was decided in the 
negative early in the juridical history of this country. The 
instance concerned international relations with France and arose 
during the administration of Mr. Washington. Early in 1793, 
by direction of the President, Secretary of State Thomas Jef- 
ferson addressed to the Justices of the Supreme Court a com- 
munication soliciting their views upon the question whether 
their advice to the executive would be available in the solution 
of important questions on the construction of treaties, laws of 
nations and laws of the land. Chief Justice Jay and his as- 
sociates answered the President that consideration of the lines 
of separation drawn by the Constitution between the three 
departments of government and the fact that they were judges 
of a court of last resort, afforded strong arguments against 
the propriety of deciding extra-judicially the questions sub- 
mitted. They expressed the view that the power, given by 
the Constitution to the President, of calling on heads of de- 
partments for opinions “seems to have been purposely, as well 
as expressly, united to the executive departments.” * That 
the Supreme Court might have been considered as entering 
the field of politics, had it granted such opinions, was suggested 
by Mr. Justice Marshall when he stated “considering them- 
selves merely as constituting a legal tribunal for the decision 


1 Correspondence of John Jay, Vol. III, p. 486. 
126 


ADVISORY OPINIONS IN UNITED STATES 127 


of controversies brought before them in legal form these 
gentlemen decided it improper to enter the field of politics 
by declaring their judgment on questions not growing out 
of the case before them.”* The rule is, therefore, that while 
the President may require a written opinion from his cabinet, 
neither he nor Congress may require the Supreme Court to 
give them extra legal advice.® 


166. Nine states have made provision for advisory opin- 
ions to be rendered to the co-ordinate branches of the state 
government by the Supreme Court or its justices: These 
provisions vary somewhat and it is necessary, therefore, to 
examine them in detail. Alabama. The state constitution 
contains no provision, but in 1923 a law was passed authoriz- 
ing the Governor or either branch of the legislature to obtain 
written opinions on constitutional questions from the justices. 
The statute specifically stated that these opinions were not 
to be regarded as binding upon the state nor upon any depart- 
ment thereof nor upon the justices. The justices may request 
briefs from the attorney general and may receive briefs from 
other attorneys as amicus curiae on such questions as may be 
propounded to them. This act has been construed to mean 
that it contemplates merely an advisory opinion from the in- 
dividual judge, and not from the Court and it is not bind- 
ing; nor is it invalid as being an encroachment upon other 
departments. A minority opinion expressed grave apprehen- 
sion concerning the policy involved in the practice of advisory 


2 Life of Washington, Ed. Phil. 1807, V., 441. 

3In the Federal Convention of 1787 it was proposed that “each branch 
of the legislature as well as the supreme executive shall have au- 
thority to require the opinions of the supreme judicial court upon 
important questions of law and upon solemn occasions.” Nothing 
however came of this proposal. 

4209 Ala 593. 


128 THE SENATE AND THE COURT 


opinions.* Colorado. The constitution provides that the Su- 
preme Court shall give its opinions upon solemn occasions 
when required by the Governor, the Senate or the House of 
Representatives and all such opinions shall be published in 
connection with the reported decisions. Interpreting the con- 
stitution, the Court has held: (1) That justices will decline 
to express any opinion on the validity or effect of acts purport- 
ing to be completed legislation since the provision was intended 
to avoid unconstitutional legislation by determining in advance 
the validity of proposed or pending acts. (2) The question 
of whether the occasion is a solemn one each justice is to 
determine for himself, but in case of doubt the duty of the 
justice is to resolve that doubt in favor of the prerogative of 
the body propounding the question.’ (3) The provision con- 
cerning advisory opinions will be applied only to cases where 
public rights are involved and even questions of this character 
should rarely be presented or considered.® (4) Statutes of 
long standing are not to be interpreted ex parte. Delaware. 


5 The Minority response to the request includes the following statement : 
It is impossible to read the opinions of the courts throughout the 
country without coming to the conclusion that the attitude of the 
judiciary generally has been unfavorable to the practice even in those 
states where it is expressly permitted by the constitutions ... if the 
legislature may in this way obtain advisory opinions on any subject, 
it may, as the practice develops, obtain such opinions on all subjects, 
great or small, speculative or concrete, for the legislature has defined 
the limits of such requests for itself and may hereafter again define 
them according to its own pleasure. The legislature may with equal 
right and propriety summon the judges daily to appear at the bar of 
the House and Senate there to answer questions, for that, in effect 
though by indirection, is what is now done in this case. 209 Ala 603. 
6In re Senate Res. 54 Col 262. 
754 Col 165. 
8 Wheeler vs. Irrigation Co., 9 Col 248. 
9 Interrogatories, 62 Col 188. 


ADVISORY OPINIONS IN UNITED STATES 129 


The Revised Code of 1915 provides that the chancellor and 
judges, whenever the Governor shall require it for public in- 
formation or to enable him to discharge the duties of his 
office with fidelity, shall give him their opinions in writing, 
touching the proper construction of any provision in the 
constitution of the state or of the United States or the con- 
stitutionality of any law enacted by the legislature of Delaware. 
This provision has been interpreted to mean that the only thing 
the chancellor and judges are called upon to do when replying 
to an inquiry as to the constitutionality of a statute is to ex- 
press an opinion thereon.° Florida. The constitution pro- 
vides that the Governor may at any time require the opinion 
of the justices of the Supreme Court as to the interpretation 
of any portion of the constitution or upon any question affect- 
ing his executive powers and duties and the justices shall render 
such opinions in unity.11 These provisions lay down a nar- 
rower policy than in other states in that the authority is con- 
fined to the Governor ; and he may request an opinion concern- 
ing only that portion of the constitution which affects his 
executive powers. Maine. The constitution adopted in 1819, 
provides that justices of the Supreme Court shall be obliged 
to give their opinion upon important questions of law and upon 
solemn occasions when required by the Governor, Council, 
Senate or House of Representatives. A number of opinions 
have been rendered interpreting ‘“‘a solemn occasion” of which 
the following are illustrations: (1) The Governor requested 
an opinion in relation to his power to remove a county attorney. 
The justices declined to advise on the ground that the facts 
stated did not indicate that any solemn occasion existed within 
the meaning of the constitution; and for the further reason 
that the question could be speedily determined in a judicial 


10In re School Code, 30 Del 406. - 
11 Advisory Opinions, 61 Fla 1. 





130 THE SENATE AND THE COURT 


proceeding which might be instituted under the statute.’ (2) 
An opinion was requested in the matter of private rights. The 
justices were of the opinion that it did not constitute a solemn 
occasion and it would be improper for them to express an 
opinion upon such rights except in the performance of their 
judicial duties. (3) The justices were requested to give to the 
Senate an opinion on questions involving the power of the 
legislature “to prohibit, regulate or restrict the cutting or de- 
struction of trees growing on wild or uncultivated land by 
the owner thereof without compensation therefor to the owner, 
in order to... prevent or diminish injurious erosion of the 
land, and the filling up of the rivers, ponds and lakes.” On 
that occasion the justices declined on the ground that a citizen 
shall not be deprived of his life, liberty, property or privileges 
except by the law of the land which hears before it condemns 
and which proceeds upon inquiry and renders a judgment only 
after trial. Massachusetts. The constitution provides that 
each branch of the legislature, as well as the Governor and 
Council, shall have authority to require opinions of the justices 
of the Supreme Court upon important questions of law and 
upon solemn occasions.1* Many opinions have been rendered 
interpreting this provision, and laying down a definite policy. 

12 Opinions of Justices 85 Me 546. 

13 Jn 1820 there was a movement in Massachusetts to repeal the pro- 
visions authorizing advisory opinions. The Committee of which Judge 
Story was chairman recommended that it was inexpedient to retain 


the provision. The resolution was agreed to by a large majority in the 
Convention but was defeated at the polls. (2 Mass. Law Rev. Quar. 
Pp. 549.) 

14 Opinions have been given when required by the Governor and 
Council upon questions of law affecting the constitution of the Council; 
or involved in the exercise of the power of the Governor to veto bills 
or resolves; power vested in him as commander-in-chief of the militia; 
his power to appoint or remove public officers, or to pardon offenses; 
or in the discharge of duties imposed upon the Governor and Council 
by statute, such as issuing warrants for the payment of claims against 


ADVISORY OPINIONS IN UNITED STATES 131 


New Hampshire. The constitution provides that each branch of 
the legislature, as well as the Governor and Council shall have 
authority to require the opinion of the justices of the Superior 
Court upon important questions of law and upon solemn occa- 
sions. Interpretations of the provision establish the principle 
that justices, in reaching conclusions, given in response to an 
application from the Governor, cannot receive evidence nor 
determine questions of fact;+5 and the three branches of the 
government shall remain independent and not encroach upon 
each other.*® Rhode Island. The constitution provides that 
the judges of the Supreme Court shall in all trials instruct the 
jury in law. They shall also give their written opinion upon 
any question of law whenever requested by the Governor or by 
the house of the general assembly. South Dakota. The con- 
stitution provides that the Governor shall have authority to re- 
quire the opinions of the judges of the Supreme Court upon 
important questions of law involved in the exercise of his 
executive powers upon solemn occasions. 


167. The policy adopted by these nine states establishes 
the following common principles: (1) Justices, not the 
Court, grant the opinions. (2) The executive and legislative 


the commonwealth, or canvassing returns of votes for public officers.— 
Opinions have been given to the Senate or House, upon the construction 
and effect of the constitution and of existing statutes, with a view to 
further legislation; upon questions whether a bill has been so laid be- 
fore the Governor as to become a law by lapse of time without his 
approval; upon questions relating to the votes for Governor and Lieu- 
tenant-governor which are directed by the constitution to be counted 
by the Senate and House; or to the election of councillors while such 
election was required by the constitution to be made by the two 
houses; or to the election returns or qualifications of senators or 
representatives of which the Senate and House respectively are the 
final judges. 

1576 N H 601. 

1656 N H 574: 67 N H 600. 


132 THE SENATE AND THE COURT 


branches of the government consult their judicial department 
as their counsel; and in some instances the privilege is re- 
stricted to the executive department. (3) The matters upon 
which the Court is consulted are strictly limited and do not 
include litigious matters. (4) Opinions thus rendered are not 
binding upon any department of the state government. (5) 
The procedure is informal and non-judicial. (6) Thirty-nine 
states of the Union have not favored advisory opinions and the 
policy is therefore one pertaining to a small minority of states. 


168. Four states have experimented with advisory opin- 
ions and rejected them: Minnesota adopted a statute in 1859 
which provided that either house may by resolution request 
the opinion of the Supreme Court or any one or more of the 
judges thereof shall give an opinion in writing upon a given 
subject when requested to do so. This act was declared un- 
constitutional in 1865, the reason being that it was an encroach- 
ment of one department upon another. It was the opinion of 
the justices that the duty imposed on the Court to render 
opinions was neither a judicial act nor was it to be performed 
in a judicial manner. It constituted the Supreme Court the ad- 
viser of the legislature, nothing more. “This,” said the justices, 
“does not come within the provisions of the constitution and 
as the constitution now stands would be, in our opinion, not 
only inconsistent with judicial duties but a dangerous preced- 
ent.”” The justices were unanimously of the opinion that the 
provision in the Statute imposing a duty on the Court was 
unconstitutional and void and they declined to grant an 
opinion.’ The constitution of Missouri of 1865 provided 
that the judges of the Supreme Court shall give their opinions 
upon important questions of constitutional law and upon solemn 
occasions when required by the Governor, the Senate, or the 
House of Representatives; and all such opinions shall be pub- 


17190 Minn 78. 


ADVISORY OPINIONS IN UNITED STATES 133 


lished in connection with the reported decisions of the said 
Court. The constitution of 1875 eliminated the entire pro- 
vision. The reason is to be found in the antagonism of the 
Court to advisory opinions, it having declined on several oc- 
casions to render such opinions and in other instances having 
defined within very narrow limits the power of the departments 
to request such opinions. “It is not contemplated,” said the 
justices, “by the constitution that the judges are to give their 
opinion on any questions which may afterwards come before 
them for adjudication.” 18 The constitution of Nebraska pro- 
vides that the Supreme Court may, when requested by the 
legislature, certify to the legislature its conclusions as to de- 
sirable changes in the general laws. The authority is here 
strictly limited to pending or proposed legislation. In the 
minority opinion delivered in 209 Ala 593 the judge pointed 
out that in Nebraska the Court had passed a rule that it would 
answer no more questions. The public statute of Vermont pro- 
vided that the Governor when the interests of the state demand 
it may require the opinion of the judges of the Supreme Court, 
or a majority of them, upon questions of law connected with 
the discharge of his duties; and the judges of the Supreme 
Court, or any of them, shall give an opinion in writing upon 
such questions. This law was enacted in 1864,*° and repealed 
by an Act of IQI5. 


169. Two states have adopted advisory opinions with re- 
spect to criminal cases: In Oklahoma the Revised Statutes 
provide that the judge of a court at which a conviction re- 
quiring a judgment of death is had, must immediately after the 
conviction transmit to the Governor, by mail or otherwise, a 
statement of the conviction and judgment, and the testimony 
given at the trial; and that the Governor may, thereupon, require 


1851 Mo 586. 
19 Laws of 1864, No. 70. 


134 THE SENATE AND THE COURT 


the opinion of the judges of the Supreme Court, or any of 
the judges, upon the statement so furnished. In New York, 
Sections 493-4 of the Code of Criminal Procedure are similar 
to the Oklahoma statute. Article 494 was construed in a case 
wherein the defendant was convicted of murder and after the 
record of the case was transmitted to the Governor he requested 
the opinion of two advisers from the Supreme Court as to 
whether certain evidence was properly admitted, to which they 
returned an affirmative answer.?° These provisions constitute 
a departure from the policy laid down in the nine states where 
advisory opinions may be requested by co-ordinate branches of 
the state government for the purpose of conducting more 
properly the business of the state. 


170. The practice followed in the nine states which retain 
advisory opinions is derived from the British practice: 
This fact is established by various opinions which have acknowl- 
edged this source.24_ The most complete historical statement 
was made in a Massachusetts case wherein the development was 
traced from England to the United States.22 In an opinion 
rendered in Maine it was stated that the practice of giving 
advisory opinions is a continuation and extension of a power 
and practice derived from England and exercised by the colonial 
governments of Massachusetts.2* The essential principles of 
the British practice have been retained with respect to the au- 
thorization to submit questions, and the authorization to grant 
opinions and the manner of so doing. 


171. Only the Governor or branches of the legislature 
may request advisory opinions: To this general rule there 
is no exception and but one limitation: it may be restricted only 


20 People vy. Green, 1 Denio, 614. 


21209 Ala 593. 
22126 Mass 557. 


2395 Me 573. 


ADVISORY OPINIONS IN UNITED STATES 135 


to the Governor as in South Dakota. Article 14 of the Cove- 
nant is in agreement with this rule. Under this interpretation 
the Council and Assembly are considered to be co-ordinate 
branches of the League System, bearing a relation to the Court 
similar to that which the executive and legislative branches bear 
to the state supreme courts. Otherwise no analogy appears to 
exist. 


172. Advisory opinions are delivered by justices and not 
by the Court: There are two exceptions to this rule—in Colo- 
rado where the Court delivers the opinion and in Florida where 
the justices are expected to render such opinions in unity. In 
all other instances one or more justices render the opinions. 
Article 14 of the Covenant is not in agreement with these 
provisions. It specifies that the Court may or will render such 
opinions and the Court has adopted rules putting into effect 
this stipulation. 


173. The practice of advisory opinions is limited to con- 
stitutional questions, solemn occasions and to interpreting 
the duties of the state executive: This general rule is sub- 
ject to limitations in scope but not in substance. In Alabama 
the opinions are restricted to constitutional questions; in 
Colorado to solemn occasions ;** in Florida they are restricted 


24Tn Maine the justices have held that a request from a Governor 
concerning his right to remove a county attorney does not constitute a 
solemn occasion (85 Me 546); also the question of whether the office 
of fish and game commissioner was an office of profit thereby preclud- 
ing such officers from becoming a member of the legislature was not so 
regarded (95 Me 564). In South Dakota an opinion was sought 
concerning a statute providing for the assessment of railway, telephone 
and express companies which was declared repugnant to the South 
Dakota constitution by a decision by a United States court in a litiga- 
tion between South Dakota and the American and Wells Fargo Co. 
The justices declined to render an opinion on the ground that the loss 
of expected revenue from taxation of these companies involved in such 
litigation did not constitute a solemn occasion. 


136 THE SENATE AND THE COURT 


to the interpretation of any part of the constitution or upon 
any question affecting the executive power and duties of the 
Governor; in Maine and Massachusetts such opinions may ex- 
tend to important questions of law to be delivered upon solemn 
occasions; in Rhode Island they are restricted to questions of 
law; in South Dakota, to important questions of law involved 
in the exercise of the executive powers on solemn occasions. 
Article 14 of the Covenant is not in agreement with the pro- 
visions of these state constitutions and statutes. The Covenant 
authorizes the Council and Assembly to request an opinion upon 
any case and every question. Therefore, there can be no 
analogy between the competence of the justices of the state 
supreme courts and the Permanent Court of International 
Justice. 


174. The limitation placed upon advisory opinions pre- 
cludes the submission of actual controversies or questions 
involving private rights: This question was raised squarely 
in Colorado which is more friendly toward such opinions. The 
question propounded by the Senate involved the interrogation 
whether a public official had the right to hold over in office 
after an election. The Court held where private rights were 
involved the Court will not give an ex-parte opinion in response 
to such interrogatories; and that such rights would not be re- 
garded as matters of “solemn occasions.” > In another case 
the Court held that advisory opinions would be given in cases 
only where public rights were involved and even questions of 
this character should be rarely presented or considered.2* The 
justices of the Supreme Court of Maine were not less emphatic, 
declining to express their opinion on questions of law concern- 
ing the rights of citizens, except in the performance of judicial 

25 52 Col 166. There was a dissenting opinion to the effect that the 
legislature and not the Court should be the judge of what constitutes a 


solemn occasion. 
26 Wheeler vs. Irrigation Co., 9 Col 248. 


ADVISORY OPINIONS IN UNITED STATES 137 


functions.2” Opinions, said the justices of the Massachusetts 
Supreme Court, may be rendered on questions of law but not 
on questions of fact.?8 In South Dakota, the justices declined 
to give an opinion concerning the validity of a proposed bond 
issue on the ground that it would amount to an expression of 
opinion without the bond holders having had an opportunity 
to be heard.?® Under the American practice the parties can- 
not appeal to the Governor or legislature to obtain advice for 
them in the settlement of a dispute and if they do so the Court 
will decline to give an opinion as not being within the provisions 
of the Statute. The object of an advisory opinion is plainly 
to enable the executive to request an opinion in order that he 
may conduct the business of the state in a legal and effective 
manner; and to enable the legislature to enact constitutional 
laws. Under Article 14 of the Covenant an entirely different 
practice prevails. Parties can and do use the Council for the 
purpose of obtaining legal advice for the settlement of actual 
disputes. The object of an advisory opinion is clearly for the 
purpose of settling disputes which have nothing to do with the 
administration of the League or with conventions promulgated 
by that body. At this point all analogy between the American 
and League practices breaks down upon organization grounds. 


175. State justices in order to protect their proper juris- 
diction strictly construe the provisions empowering them 
to grant advisory opinions: In general, justices do not favor 
granting advisory opinions by reason of their purely advisory 
character and possible embarrassment which they fear may arise 
if the matter is submitted later to the Court for decision; and by 
reason of the dangers of encroachment of one department upon 
another. An illustration is afforded in South Dakota where 


27103 Me 514. 
28120 Mass 600; see also 76 N H 601. 
2934 S D 650. 


138 THE SENATE AND THE COURT 


the Governor alone has the right to request such opinions. He 
submitted a question at the request of the legislature upon the 
construction of a provision of the constitution. The justices 
declined to grant an opinion on the ground that the right to 
request such opinions is confined to such questions as raise a 
doubt in the executive department but not in the legislature.*° 
Under Article 14 of the Covenant the Court of Justice, under 
the broad latitude allowed, has not the protection accorded to 
justices of state courts. The burden is, therefore, upon the 
Council to use circumspection in the submission of questions 
so as not to embarrass the Court; or cause its jurisdiction to 
be rejected. 


176. It is not mandatory upon state justices to grant 
opinions whenever requested: The general practice is for 
justices to exercise their discretion with respect to whether the 
question comes within the terms of the constitution or statute 
and whether the Governor or legislature in making the request 
is acting within the rules of established law. For justices, in 
granting opinions, will take into consideration existing law. 
This rule obtains even when the terms of the Statute stipulate 
that the justices or Court shall give an opinion when requested. 
An illustration is afforded by Colorado. Its constitution pro- 
vides that the Court shall gives its opinion, but the Court de- 
clined to give an opinion on the question whether a bill propos- 
ing to increase the fees of district attorneys throughout the 
state would apply to attorneys then in office, on the ground that 
the question did not relate to matters exclusively juris publica 
nor to the constitutionality of any act.*4 In Maine, an opinion 
was declined on the ground that the facts stated did not indicate 
that a solemn occasion existed within the meaning of the con- 
stitution and for the further reason that the matter might be 


803 S D 548. 
3112 Col 466. 


ADVISORY OPINIONS IN UNITED STATES 139 


appropriately determined in judicial proceedings.** In Massa- 
chusetts, the justices declined to grant an opinion on the ground 
that it did not appear to what if any pending matter the ques- 
tion related, since the provisions of the constitution had been 
construed to mean that such opinions may be required only 
respecting pending matters, in order that assistance may be 
gained in the performance of a present duty.** The justices 
in South Dakota declined to grant an opinion on the ground 
that the matter presented was not one of urgent necessity jus- 
tifying an ex parte opinion; ** and only the gravest and most 
urgent necessity will justify the rendering of ex parte opinion 
on the request of the Governor where private rights are con- 
cerned.2> Under Article 14 of the Covenant, the English text 
makes the granting of such opinions permissive while the French 
text makes it mandatory. But the interpretation accepted by 
the Court is analogous to the American practice, namely that the 
Court will use its discretion and in granting an opinion will 
have due regard to existing rules of international law. Inas- 
much as both texts are authentic, the question 1s open to a 
different interpretation.* 


177. Advisory opinions are not binding upon either the 
Governor or legislature: The general rule has been attested 
by a number of instances. The Alabama statute states specifi- 
cally that the opinions are not binding upon any department 
of the government. In an opinion given by justices in Maine 
it was held that opinions have no judicial force and cannot bind 
nor control the action of any officer of any department.*? Prof. 
Thayer is authority for the statement that advisory opinions 


82 Opinions of Justices, 85 Me 546. 

88 211 Mass 630. 

8443 S D 645. 

8534 S D 650. 

88 For discussion of status of Eastern Carelia,—see Annex I. 
8758 Me 572; see also 72 Me 562. 


140 THE SENATE AND THE COURT 


have not the quality of judicial authority,** and that the single 
exceptional and unsupported opinion on this subject in the state 
of Maine made at a time of great political excitement,*® and to- 
gether with a doctrine, in the State of Colorado, founded upon 
considerations peculiar to its constitution, do not qualify the 
general rule. Under Article 14 of the Covenant, advisory 
opinions are not binding upon either Council or Assembly. 
The Covenant and Statute, being silent upon this point, and 
there being no authoritative interpretation, the question is still 
open to construction. The fact that the Council has accepted 
the opinions rendered, in principle, does not fix the rule, for 
no dicium has been pronounced.*® The opinion is not binding 
upon the parties until voluntarily accepted or incorporated in. 
the award of the Council; and then only to the extent to which 
members under the Covenant are bound by a recommendation 
of the Council. 


178. Advisory opinions are not binding upon the Court 
when the matter subsequently comes before it for judicial 


88 The Origin and Scope of the American Doctrine of Constitutional 
Law, by Prof. James B. Thayer, 7 Harvard Law Review, p. 153. 

39 The reference is to 70 Me 583 wherein the question submitted by 
the Governor was whether he had a right under the constitution to sum- 
mon a person to attend and take a seat in the Senate or House who by 
the official returns under the decision of the Court did not appear to be 
elected but defeated or not voted for; or would such summons be- 
merely void as exceeding the power of the Governor. The opinion, 
among other things said that by the provisions of the constitution the 
Court was required to expound and construe the provisions of the con- 
stitution and statute. The law thus determined is the conclusive guide 
of the Governor and Council in the performance of their ministerial 
duties and any action on their part in violation of the provisions of the 
constitution thus declared is usurpation of authority. 

40 For reference to Geneva Protocol wherein the Assembly asserted 
its right to consider a domestic question after the Court had declared it 
to be such, see p. 171. ! 


ADVISORY OPINIONS IN UNITED STATES 141 


decision: There appears to be no exception to this rule. In 
New Hampshire, the justices expressed the view that they had 
not received aid from counsel and, therefore, their opinions 
must be regarded as impressions by which the Court will not 
feel itself bound should the bill become a law and if the rights 
of a citizen should depend upon its construction.*t In Maine, 
the justices were of the opinion that advisory opinions were not 
within the principle of stare decisis but were merely opinions 
in the way of advice like those of counsel: and the justices 
giving them are in no degree bound to adhere to them when 
the same question arises should argument or further research 
or reflection change their prior views.*? In Massachusetts, it 
has been held that in giving advisory opinions justices do not 
act as a court but as constitutional advisers to other departments 
of the government; ** also when called upon to decide upon a 
matter coming before them as a court, the justices are bound 
most sedulously to guard against any influence flowing from 
their previous consideration in their advisory capacity.“* Un- 
der Article 14 of the Covenant and the Court Statute, it has not 
been judicially determined whether advisory opinions are bind- 
ing on the Court for no question submitted for an opinion has 
been resubmitted for a judgment, and the Court has uttered no 
dictum.*° 


179. Opinions are reported among regular decisions but 
not for the purpose of using them as precedents: Not all 
of the states publish the decisions, and, obviously, since the 
opinions have no binding quality and vary in their application 


4125 N H 537. 

4295 Me 564. 

48 126 Mass 566. 

44 233 Mass 603. 

45 See, however, Annex I, for summary of the opinion in the 
matter of Saint Naoum wherein the Court cited a previous advisory 
opinion. 


142 THE SENATE AND THE COURT 


by the recipients, they do not constitute precedents. On the 
contrary, the opinions are formulated with due regard for prin- 
ciples of law established by decisions. The practice of publish- 
ing opinions, together with documents, is more elaborately car- 
ried out by the Permanent Court of International Justice. 
Whether the opinions will constitute precedents is not deter- 
mined; but that they may do so is possible, since Article 59 
of the Statute refers only to decisions; and the procedure fol- 
lowed in advisory proceedings affords a sufficient legal ground 
for considering opinions as precedents. 


180. The proceedings under which advisory opinions are 
rendered are informal and of a non-judicial character: As 
a rule, the parties are not heard, attorneys do not appear, briefs 
are not submitted and evidence is not taken in a proceeding 
for an advisory opinion. There are exceptions with respect only 
to the submission of briefs. The Alabama statute permits the 
Court to receive briefs. Early in the history of Massachusetts 
the justices appear to have had before them the written opinions 
of the attorney and solicitor general and of those who were in- 
terested adversely to the government.*® This appears however 
to have been an isolated instance occurring in 1825. Certain 
justices have, however, expressed regret that they did not have 
the benefit from the investigations of interested parties and 
their learned counsel.47 Under the rules of the Permanent 
Court of International Justice, the proceedings may be as in- 
formal and non-judicial as the practice by state justices. The 
Court has particularly avoided making any rules on the subject 
except that opinions shall be determined by the full Court. 
That the Court has chosen, up to the present time, to apply 
approximately the same rules of procedure which it uses for 
judgments does not affect its complete authority to follow any 


46 Referred to in the case of Adams vs. Bucklin, 7 Pick 121. 
4741 N H 552. See also 4 R I 324. 


ADVISORY OPINIONS IN UNITED STATES 143 


procedure it chooses. On the other hand, state justices by 
the very terms of the constitution or statute, are limited to an 
informal procedure since the Court does not formally render 
the opinion. 


181. The rendering of advisory opinions is a non-judicial 
function: In each state where the provision has received in- 
terpretation the opinion is generally to the effect that the func- 
tion is non-judicial. In the matter of the State Industrial Com- 
mission, Judge Cardozo has stated what is undoubtedly the 
prevailing rule.‘* But if further evidence is required concern- 
ing the status of such opinions, it will be found in an opinion 
in 209 Ala 593, wherein it is pointed out that the Act contem- 
plates a non-judicial function ; *° also in 95 Me 572, wherein the 
justices said “they are merely opinions in the way of advice 
like those of counsel”; also in 126 Mass 566, wherein it was 
stated that justices do not act as a Court but as constitutional 


48 The rule, as stated, follows: 

The giving of such opinions is not the exercise of a judicial 
function. It is true that in England the custom of the constitution 
makes the judges of the high court the assistants of the Lords, and 
requires them upon the demand of the Lords to give consultative 
opinions. But that custom is a survival of the days when the judges 
were members of the great council of the realm. In the United 
States no such duty attaches to the judicial office in the absence of 
express provisions of the constitution. Even in those states e. g. 
Massachusetts, Maine and New Hampshire where such provisions 
are found the opinions thus given have not the quality of judicial 
authority. The judges then act, not as a Court but as the constitu- 
tional advisers of the other departments (224 N Y 13). 

49 “Judicial power,” says Justice Miller, “is the power of a court to 
decide and pronounce a judgment and carry it into effect between per- 
sons and parties who bring a case before it for decision.” (Lectures 
on the Constitution of the U. S., p. 314.) “The exercise of judicial 
power is limited to cases and controversies” was the dictum delivered 
in Muskrat vs. U. S., 19 U S 356. 


144 THE SENATE AND THE COURT 


advisers of other departments of the government; also in 60 
N H 588s, wherein the justices are said to act as constitutional 
advisers of either branch of the legislature. Under the Cove- 
nant, the question whether rendering advisory opinions con- 
stitutes a judicial function has received no judicial interpreta- 
tion. But official utterances, other than a judicial decision, 
would indicate that in Europe such opinions, notwithstanding 
the application of a judicial procedure, are regarded to be non- 
judicial in the strict sense in which the term is used in the 
United States.°° 


182. Advisory opinions as practiced in the United States 
do not justify adherence of this country to the Court Stat- 
ute on the basis of precedent or analogy:** The disparity 
between the two practices—that in the nine American states and 
that under Article 14 of the Covenant—is of a nature to in- 
dicate that a very different experiment is being tried in Europe 
from that in the United States. As has been seen, in the one 
instance only justices render the opinion while in the other it 
is the Court: in the one instance the subject is strictly limited 
while in the other it is unlimited: in the one instance opinions 
may not be applied to actual cases or rights of parties while in 
the other it has been applied to nothing else; in the one instance 
the constitution or statute protects the ultimate jurisdiction of 
the Court; in the other it is thrown open to invasion by re- 
quests for opinions ; in the one instance the question of whether 
the Court may use its discretion is not open to doubt whereas 


50 For statement of official utterance, see p. I14. 

51 The six judgments rendered by the Court related to four cases 
arising under the Peace Treaties or from Conventions concluded there- 
under. As such, these cases present no especial problem in American 
policy. A summary of these judgments will be found in Annex I, as 
follows: (1) The S S “Wimbledon”; (2 and 5) the Mavrommatis 
Palestine Concessions; (3 and 4) interpretation of the Treaty of 
Neuilly; and (6) German interests in Upper Silesia. 


ADVISORY OPINIONS IN UNITED STATES 145 


in the other instance the two texts permit of ambiguity; in the 
one instance the procedure can only be informal while in the 
other it can be anything the Court decides upon; in the one 
instance the opinions may not be used as precedents or as con- 
tributions to law, but are derived from law while in the other 
case the question remains to be determined. But greater than 
these differentiations, important as they are, is the profound 
truth that in Europe the authority for the settlement of dis- 
putes does not repose in the Court but in the Council whereas 
in the United States it reposes in the Court; and there is wholly 
lacking in the League System a specific division of duties cor- 
responding to the American system. For these reasons, the 
discussion of advisory opinions as an element in the adherence 
of the United States to the Court Statute must rest, not upon 
a consideration of the constitutions and practice of the states 
of the United States, but solely upon the Treaty of Versailles 
and the practice of the League of Nations. 


CHAPTER XII 
JURISDICTION WITH RESPECT TO INTERNATIONAL LABOR 


183. Part XIII of the Treaty of Versailles provided an 
organization for the improvement of labor conditions:* It 
establishes the International Labor Office under the imme- 
diate supervision of a Director and responsible to a Governing 
Body, as part of the League of Nations, with headquarters at 
Geneva, and provides for a General Conference of representa- 
tives of the members to be held not less than once a year. The 
general organization and procedure are prescribed, including the 
collection and distribution of information concerning all sub- 
jects relating to the international adjustment of conditions of 
industrial life and labor;? and, particularly, subjects it is 
proposed to bring before the General Conferences; and also 
the conduct of such special investigations as may be ordered 
by the General Conference. The Permanent Court of Inter- 
national Justice is, under Article 423,* authorized to settle any 


1Part XIII of the Treaty of Versailles is also Part XIII of the 
Treaties of St. Germain and Trianon and Part XII of the Treaty of 
Neuilly. 

2 These include: (1) Labor is not a commodity; (2) right of as- 
sociation; (3) living wage; (4) eight-hour day; (5) one day’s rest 
in seven; (6) abolition of child labor; (7) equal pay for equal work; 
(8) standard in each country should have regard to equitable economic 
treatment of all workers lawfully resident therein; and (9) system of 
inspection for women workers. 

8 Article 423. Any question or dispute relating to the interpreta- 
tion of this part of the present Treaty or of any subsequent conven- 
tion concluded by the members in pursuance of the provisions of this 
part of the present Treaty shall be referred for decision to the Per- 
manent Court of International Justice. 

146 


WITH RESPECT TO INTERNATIONAL LABOR 147 


question or dispute arising under the general provisions of the 
Treaty. Under this Article, the Court acquires jurisdiction 
over such questions as the following: (1) Whether delegates 
have been selected by states in accordance with Article 389 
and whether they have been properly seated. (2) What sub- 
jects are included within the functions of the International 
Labor Office. (3) Whether items have been included upon 
the agenda in accordance with Article 402. (4) Whether 
conventions have been adopted in accordance with the pre- 
scribed procedure under Article 405. (5) Whether states 
have complied with Article 405 in seeking appropriate legisla- 
tion or ratification. (6) Whether the protection afforded 
workers under existing legislation in the various states would 
be lessened by the proposed conventions. 


184. The Treaty provides for the calling of General Labor 
Conferences: Delegates to these Conferences represent the 
employers and work people of each state and are selected by 
it in accordance with Article 389. They may be accompanied 
by advisers selected in the same manner. The Conference is 
authorized to refuse, by a two-thirds majority vote, to admit 
any delegate if it deems him not to have been nominated by 
the state in accordance with the Treaty. The agenda for the 
meetings contains the items which are to become the subject 
of recommendations or conventions. If objection is made, 
such an item may be retained only by a two-thirds majority 
vote of the Conference. When the Conference adopts a pro- 
posal it takes one or two forms: recommendations to be sub- 
mitted to members for their consideration with a view to 
giving them effect through national legislation or draft con- 
ventions for ratification by members. 


185. The duty of member states is to secure the adoption 
of the proposals agreed to by the General Conference: 


148 THE SENATE AND THE COURT 


‘When a draft convention is adopted, a member state agrees, 
in accordance with Article 405, to bring before its proper au- 
thority at the earliest practicable moment, not exceeding a 
period of eighteen months, such conventions for ratification. 
Should its government not ratify, the member has no further 
obligation and the convention is not binding; but if the con- 
vention is ratified then the state agrees to make effective its 
provisions. When a recommendation is adopted, each member 
agrees to bring it before its legislature for the purpose of en- 
acting its provisions into a national law. When this duty 
is fulfilled, even though no legislation results, the state as- 
sumes no further obligation. The Permanent Court of 
International. Justice is granted authority to hear and deter- 
mine disputes arising under these provisions. In the event 
that a member state fails to bring a recommendation or draft 
convention to the attention of the proper national authorities, 
any other member is entitled to bring this failure to the 
attention of the Court.4 Should a member fail to take the 
action necessary to make effective the provisions of a conven- 
tion which it has ratified, any member may bring the matter 
to the attention of the International Labor Office which may 
refer the matter to a commission of inquiry.° The commis- 
sion is authorized to consider the complaint, and prepare a 
report embodying its findings. Its findings and recommenda- 
tions are submitted to the governments concerned, and, in the 
event that any such government does not accept the recom- 
mendation, it may make a complaint to the Court.* That 
tribunal may, therefore, be a Court of the first instance upon 
direct complaint or a Court of appeal from commissions of 
inquiry. The decision of the Court is final and it may affirm, 


4 Article 416 of the Treaty of Versailles. 
5 Article 411 of the Treaty of Versailles. 
6 Article 415 of the Treaty of Versailles. 


WITH RESPECT TO INTERNATIONAL LABOR 149 


reverse or vary any of the findings or recommendations of a 
commission of inquiry. 


186. The Court is authorized to indicate the nature of the 
sanctions in connection with the dispute arising under Ar- 
ticle 405 of the Treaty of Versailles: The Court may indi- 
cate the measures, if any, of an economic character which it con- 
siders to be appropriate and which other governments would 
be justified in adopting against a defaulting state.’ The 
defaulting government, thus proceeded against, may be rein- 
stated when it informs the Governing Body that it has taken 
steps to comply with either the recommendation of the com- 


7 The text of the Articles relating to sanctions follows: 

Article 418. The Permanent Court of International Justice may 
affirm, vary or reverse any of the findings or recommendations of 
the commission of inquiry, if any, and shall in its decision indicate 
the measures, if any, of an economic character which it considers 
to be appropriate, and which other governments would be justified 
in adopting against a defaulting government. 

Article 419. In the event of any member failing to carry out 
within the time specified the recommendations, if any, contained in 
the report of the commission of inquiry, or in the decision of the 
Permanent Court of International Justice, as the case may be, any 
other member may take against that member the measures of an 
economic character indicated in the report of the commission or in 
the decision of the Court as appropriate to the case. 

Article 420. The defaulting government may at any time inform 
the Governing Body that it has taken the steps necessary to comply 
with the recommendations of the commission of inquiry or with 
those in the decision of the Permanent Court of International Jus- 
tice, as the case may be, and may request it to apply to the Secretary- 
General of the League to constitute a commission of inquiry to verify 
its contention. In this case the provisions of Articles 412, 413, 414, 
415, 417 and 418 shall apply, and if the report of the commission of 
inquiry or the decision of the Permanent Court of International Jus- 
tice is in favor of the defaulting government, the other governments 
shall forthwith discontinue the measures of an economic character 
that they have taken against the defaulting government. 


150 THE SENATE AND THE COURT 


mission or with the decision of the Court. A state may then 
request the Governing Body of the International Labor Office 
to apply to the Secretary-General of the League to constitute 
a commission to verify the fact of compliance. The report of 
this commission is to be forwarded to the states concerned 
(in accordance with Article 415 of the Treaty of Versailles) 
which shall inform the Secretary-General whether they accept 
the recommendations contained therein, or whether they wish 
to refer the matter to the Court. If the report of the com- 
mission or the decision of the Court is in favor of the defauit- 
ing government the other governments shall discontinue the 
sanctions. It appears from these provisions that the inter- 
vention of a commission of inquiry, appointed by the Secretary- 
General of the League, is essential to the cessation of sanctions 
which the Court has indicated; although under Article 50 of 
the Statute the Court has ample powers to conduct its own 
inquiries. These provisions constitute the only instance 
wherein the Court is authorized by signatory states to indicate 
sanctions. | 


187. For the purpose of hearing and determining such 
disputes the Court Statute creates a special chamber for 
labor cases: The proposal that a special chamber be created 
for this purpose and that the International Labor Office be 
permitted to appear as a party before the Court was first 
suggested to the Advisory Committee of Jurists which, how- 
ever, did not regard it with favor and refused to make any 
recommendation. The First Assembly, however, added to the 
Statute a new Article (26) which provides that all labor cases, 
particularly those arising under Part XIII of the Treaty, shall, 
whenever the parties agree to do so, be heard by a special 
chamber consisting of five judges. These judges are appointed 
by the President of the Court; they hold office for a period 
of three years; and may be reappointed. Two judges are also 


WITH RESPECT TO INTERNATIONAL LABOR 151 


designated to take the places of those who are unable to sit. 
If there is a national of one party on the special chamber, the 
President may invite one of the judges to retire in favor of 
a judge chosen by the other party. In the event that neither 
party has a national, no provision is made for the addition of 
national judges. The special chamber will be assisted by 
technical assessors chosen for each particular case from persons 
nominated by each member of the League and an equivalent 
number nominated by the Governing Body of the International 
Labor Office. The Governing Body shall make up its list 
of assessors equally from representatives of employers and of 
employees, from the list referred to in the Treaty of Versailles 
and in corresponding articles in other Treaties of Peace. The 
International Labor Office is at liberty to furnish the Court 
with all relevant information and shall receive copies of all 
written proceedings. 


188. Matters arising under Part XIII of the Treaty of 
Versailles have been submitted to the Court for interpreta- 
tion: These include three disputes arising: (1) Under Arti- 
cle 389, relating to the method of nominating delegates; (2) 
under Article 396, relating to the meaning of the term indus- 
trial life and labor; and (3) a supplemental question arising 
under Articles 396 and 405. 


189. Direct access to the Court for purposes of a judg- 
ment may become indirect access for purposes of advice: 
Although Part XIII confers obligatory jurisdiction upon the 
Court, in the three instances noted the advisory competence 
of the Court was invoked. In the first instance, concerning 


8 The first special labor chamber comprised: Lord Finlay (Great 
Britain), president, M. de Bustamente (Cuba), M. Altamira (Spain), 
M. Anzilotti (Italy) and M. Huber (Switzerland), with M. Nyholm 
and Mr. Moore as substitutes. All have been reappointed for the pe- 
riod from January 1, 1925 to December 31, 1927. 


152 THE SENATE AND THE COURT 


the seating of the Netherlands Delegate to the Third Inter- 
national Labor Conference, under Article 389, the General 
Conference recommended that the Governing Body request the 
Council to give an opinion upon the question whether delegates 
nominated by a state should represent the largest trades union 
or trades unions which together had the largest membership.® 
Because of the reluctance of the Netherlands to appear as a 
party its delegate having already been seated, the question was 
submitted as theoretical. But through an error, the question 
submitted by the Council to the Court related specifically to 
the seating of the Netherlands delegate, and that state appeared 
in actuality as a defendant, though technically not such. The 
case is important in establishing the precedent that whenever 
states do not wish to appear as parties, as contemplated by the 
Treaty, they may seek an advisory opinion through the Council. 
The creation of this precedent establishes the principle that 
obligatory jurisdiction is in reality optional; that is, the parties 
or a party may apply to the Council for an opinion, thus avoid- 
ing a judgment by the Court. In this manner, the control of 
the Council over the settlement of disputes may be extended 
to cover agreements entered into by states to confer jurisdic- 
tion upon the Court; and direct access to the Court for pur- 
poses of judicial decision may be at any time converted into 
advisory jurisdiction. It is, therefore, possible to exaggerate 
the importance of the obligatory character of the jurisdiction 
in view of its convertible quality. 


9 Text of paragraph 3 of Article 389 of the Treaty of Versailles 
follows: 

The members undertake to nominate non-government Delegates 
and advisers chosen in agreement with the industrial organizations, 
if such organizations exist, which are most representative of em- 
ployers or work-people, as the case may be, in their respective 
countries. 

10 For account of the controversy, see Annex I. 


WITH RESPECT TO INTERNATIONAL LABOR 1 53 


190. Injunctions against free discussion and research may 
be sought through advisory opinions: Such an issue arose 
under Article 396 of the Treaty of Versailles and concerned 
the interpretation of the meaning of the words “conditions of 
industrial life and labor.” +4 The issue was raised by the in- 
clusion on the agenda of the Labor Conference of an item 
referring to the eight-hour day for agricultural workers. 
France opposed the discussion of this item on the ground that 
agricultural labor was not comprehended within the term 
“industrial life and labor.” This controversy involved an 
interpretation of the Treaty, being precisely the kind of ques- 
tion contemplated for submission under Article 423 to the 
Court for a decision by the chamber for labor. But the 
drafters of the labor clauses of the Treaty had not foreseen 
that members of the League would undertake to restrict in- 
stead of develop the activities of the International Labor Office 
and that instead of appearing as the prosecutor of defaulting 
states, the Director would be given the role of defendant. 
The Assembly, having refused to permit the International 
Labor Office or its Director to appear as a party before the 
Court, that body could not now be summoned as a defendant 
party. But the authority of the Council to request advisory 
opinions offered a solution and France made its complaint not 
to the Court but to the Council. The submission of the matter 
for an advisory opinion was opposed by the Director of the 
International Labor Office on the ground that the Governing 


11 Paragraph 1 of Article 396 provides: “The functions of the In- 
ternational Labour Office shall include the collection and distribution 
of information on all subjects relating to the international adjustment 
of conditions of industrial life and labour, and particularly the examina- 
tion of subjects which it is proposed to bring before the Conference 
with a view to the conclusion of international conventions, and the 
conduct of such special investigations as may be ordered by the Con- 


ference.” 


154 THE SENATE AND THE COURT 


Body on which France had a member was fully competent to 
deal with the matter but that Body had not been consulted. 
The Council submitted the question in disregard of the opposi- 
tion. Before the Court rendered an opinion, France requested 
the Council to submit a supplemental question, namely, whether 
the examination of proposals for the organization and develop- 
ment of methods of agricultural production and of other 
questions of a like character, were within the competence of 
the International Labor Office. The submission of the ques- 
tion was opposed by the Director on the ground that no such 
competence was claimed and no cause for misunderstanding 
existed. On the same day the Court rendered opinions in 
both instances to the effect that (1) the International Labor 
Organization was authorized to include agricultural labor and 
(2) the organization was not authorized to carry on agricultural 
research. The importance of these two controversies and 
their settlement arises from the principles which they establish. 
(1) The interpretation of the Treaty may be determined by 
advisory opinion as between a state and the International Labor 
Organization by reason of the fact that the latter may not 
appear as a party; but as between states which may appear as 
parties the decision is to be taken in the form of a judgment. 
(2) The advisory character of the proceeding may take on an 
obligatory character with respect to the right of the Council, 
for matters affecting the International Labor Office were 
submitted against its will. (3) The limits of the matter to 
be submitted to the Court will be defined by one of the in- 
terested parties without the approval of the body whose interests 
are affected, and it may be so framed that the Court has little 
or no discretion but to render the kind of advice sought. (4) 
An injunction may be sought and obtained against labor 
research through the instrumentality of advisory opinions ren- 
dered upon request of a political body. 


WITH RESPECT TO INTERNATIONAL LABOR 1 55 


191. Intervention by the Council renders useless the spe- 
cial chamber for labor cases: Under the Statute this chamber 
is composed of five judges; but under Article 71 of the Rules 
of the Court all advisory opinions must be rendered by the 
full Court. Until the rule is changed, no matter concerning 
labor submitted by the Council can be brought before the 
special chamber. It would seem, therefore, that the right of 
the Council to request advisory opinions on labor matters will 
render useless the machinery recommended by the International 
Labor Office, together with the guarantees of technical asses- 
sors and the right of that office to submit all relevant infor- 
mation. 


192. The question whether the adherence to the Court 
would prejudice the position of American labor is debat- 
able: In the United States, the issuance of an injunction by 
a Court in labor disputes is not regarded in a friendly light by 
organized labor. That such injunctions may be issued by way 
of advice upon questions framed without the consent or co- 
operation-of labor representatives and under a form of 
obligatory jurisdiction arising from the Treaty of Versailles, 
cannot but give rise to apprehension in principle although not 
immediately applicable in practice to the United States. The 
fact that an international court may be called upon to interpret 
Article 405 with respect to what constitutes lessening protec- 
tion afforded to workers within a state, or with respect to 
the manner in which a national act adopted in pursuance of an 
international convention is being carried out, comes near to 
interference in domestic labor matters. And while it may be 
said that such questions cannot affect American labor unless 
the United States becomes a member of the International 
Labor Organization, it should not be forgotten that adherence 
to the Court is but adherence to the League System, and as 


156 THE SENATE AND THE COURT 


such the commitment should be examined beyond its immediate 
bounds. This apprehension is reflected in the action taken 
by the American Federation of Labor at its forty-fifth annual 
session held in Atlantic City in October, 1925. On October 
16th, a resolution was adopted to the following effect: “Your 
committee has considered that part of the Executive Council’s re- 
port under the caption of “International World Court,” page 54, 
and Resolution No. 40, and begs leave to report on these propos- 
als as follows: ‘Conditions affecting the relations between the 
nations of the world are in a great state of flux. In this 
changing order of things of world-wide nature it is imperative 
that extreme caution and care be exercised in whatever deci- 
sions are reached and which are world-wide in their conse- 
quences. Because of this and for the further reason that the 
American Federation of Labor has viewed sympathetically the 
development of a tribunal which may lessen causes of war 
and promote peace among the peoples in the world without 
involving our nation in foreign entanglements and alliances, 
your committee recommends reference of the subject contained 
in Resolution No. 40 to the Executive Council for continued 
research, observation, study and constant alertness and in 
addition to a report of its findings on this subject.’’’ The 
position here taken is a reversal of the action taken by the 
American Federation of Labor at previous meetings when the 
Court had been endorsed. It indicates a more thoughtful con- 
sideration of the question of the affiliation of the United 
States with the Court. 


CHAPTER XIII 
JURISDICTION CONCERNING TRANSIT AND COMMUNICATIONS 


193. Part XII of the Treaty of Versailles and the corre- 
sponding parts of the other Treaties, dealing with ports, 
waterways and railways confers a limited amount of juris- 
diction on the Court: The jurisdiction conferred is of two 
orders: (1) Through intermediary of the League of Nations: 
and (2) obligatory. Instances of jurisdiction through the in- 
termediary of the League are Articles 336 and 376 of the Treaty 
of Versailles relating respectively to a provisional régime of 
international waterways and to the interpretation of Part XII 
of the Treaty of Versailles; and an instance of obligatory 
jurisdiction is Article 386 of the Treaty of Versailles, relating 
to the Kiel Canal. 


194. Jurisdiction with respect to international rivers was 
conferred on the Court provisionally by Article 336 of the 
Treaty of Versailles: The rivers Elbe, Oder, Niemen and 
Danube are declared to be international under the Versailles 
Treaty and are placed under the administration of international 
commissions whose members are representatives of riparian 
states and either representatives of two or more of the Allied 
Powers or of states specified by the League of Nations. Under 
Article 336 any state represented on an international commission 


1The Treaty of Versailles is here specifically dealt with but it should 
be remembered that identical or very similar clauses apply to Austria, 
Hungary and Bulgaria. 


157 


158 THE SENATE AND THE COURT 


is authorized to appeal to the tribunal instituted by the 
League? whenever a riparian state does not fulfil its inter- 
national obligations. Under Article 338 of the Treaty the 
above régime for international waterways was to be super- 
seded, however, by a general convention drawn up by the 
Allied Powers and approved by the League. The jurisdic- 
tion of the Court with respect to international rivers, therefore, 
is not governed by Article 336 of the Versailles Treaty but 
by the régime approved by the League and hereafter described. 


195. Jurisdiction with respect to the general interpreta- 
tion of Part XII of the Versailles Treaty was not specifi- 
cally conferred on the Court by the Treaty: Article 376 
merely provides that disputes concerning the interpretation and 
application of Part XII of the Treaty shall be settled as pro- 
vided by the League of Nations; the jurisdiction of the 
Court in such matters is governed by the provisions made for 
this purpose by the League. 


196. The framing of the final provisions with respect to 
Articles 338 and 376 of the Versailles Treaty was part of a 
general task laid on the League by the Covenant: Article 
23 (e) of the Covenant provides that the League “will make 
provision to secure and maintain freedom of communications 
and of transit and equitable treatment for the commerce of 
all members of the League.” In accordance therewith, the 
Council of the League, at its meeting in February, 1920, 
appointed a commission of inquiry on the freedom of communi- 
cation and transit to submit proposals regarding a permanent 
organization to deal with these subjects. This commission 
duly reported, and its proposals, as adopted by the Council, 
were submitted to the Second Committee (on Technical Organ- 
izations) of the First Assembly. 


2 This expression is defined by Article 37 of the Court Statute, to 
mean the Court. 


TRANSIT AND COMMUNICATIONS 159 


197. The First Assembly undertook to summon a general 
conference on Freedom of Communication and Transit: 
The program for this Conference was as follows: (1) To 
draw up measures to be taken for the fulfillment of provisions 
concerning freedom of transit contained in the Peace Treaties 
and in general conventions; and (2) to organize an Advisory 
and Technical Committee with the following duties: (a) to 
consider and propose measures calculated to ensure freedom of 
communication and transit; (b) to assist the Council and 
Assembly in the duties entrusted to them by various Articles 
of the Treaty of Versailles; (c) to arrange for any future 
conferences and their agenda; (d) to exchange all necessary 
information with the technical ministries of members of the 
League; and (e) to investigate any disputes which would be 
referred to the League under Articles 336, 376, and 386 of the 
Treaty of Versailles and corresponding Articles of other 
Treaties. For the settlement of such disputes, the Assembly 
provided that the Committee was to endeavor to adjust them 
by conciliation between the parties and only upon failure of 
such proceedings were such matters to be brought before the 
Court. The foregoing program included, therefore, powers 
conferred upon the League by the Treaties and by the 
Covenant, and in recommending a procedure for the settle- 
ment of disputes, made no differentiation between general 
clauses of the Treaty, and clauses specifying the use of the 
Court. 


198. The first General Conference on Freedom of Com- 
munication and Transit, held at Barcelona in March, 1921, 
and the second General Conference, held at Geneva, in 
November, 1923, extended the jurisdiction of the Court: 
Various conventions and statutes drawn up and adopted at 
these Conferences confer duties on the Court with regard to 
their interpretation; such are The Statute on Freedom of 


160 THE SENATE AND THE COURT 


Transit and the Statute on the Régime of Navigable Water- 
ways of International Concern drawn up at the Barcelona 
Conference and the Statutes on the International Régime of 
Railways and on the International Régime of Maritime Ports, 
framed at the Conference of Geneva. 


199. The jurisdiction conferred by the Barcelona and 
Geneva Conventions constitutes the Court one of appeal 
and recourse optional: The conventions concluded at Barce- 
lona elaborate the method of settlement of disputes suggested 
by the First Assembly. They provide, that any dispute as to 
the interpretation and application of these statutes which 
cannot be settled by the parties themselves is to be brought 
before the Court, unless steps are taken for settlement by 
arbitration or by some other means under a special agreement 
or a general arbitration provision. Precedence is given, how- 
ever, to another step, for the contracting parties agree to 
submit their disputes first to “any body established by the 
League of Nations as the advisory and technical organization 
of the members of the League in matters of communication 
and transit,” and this submission is to take place ‘without 
prejudice to the powers and right of action of the Council 
and of the Assembly.”* It appears, therefore, under these 
provisions that the first right of action is that of the Council 
or Assembly, the second step may be taken by the Advisory 
and Technical Committee, while third in importance are special 
agreements or arbitral provisions and only if (1) the Council 
or Assembly waive their right of action; (2) or the Advisory 
and Technical Committee fail; or (3) there exists no special 
agreement or arbitral convention between the parties, may 
a dispute be submitted to the Court. The conventions, drawn 
up at Geneva regarding railways and ports, provide that if a 


3 Article 13, Statute on Freedom of Transit; Article 22, Statute on 
the Régime of Navigable Waterways of International Concern. 


TRANSIT AND COMMUNICATIONS 161 


dispute between the parties cannot be settled amicably, the 
matter will be submitted to the Advisory and Technical 
Organization of the League, and if this body is unsuccessful 
the question will be submitted to an arbitral tribunal unless 
the parties “have decided, or shall decide, under an agreement 
between them to bring it before the Permanent Court of 
International Justice.” 4 


200. Recourse to the Court is obligatory in one instance 
under the Geneva conventions: The arbitral tribunal, at the 
request of one of the parties, may pronounce the solution of 
a question involving international law to be a necessary pre- 
liminary to the settlement of the dispute. In such instances 
the jurisdiction of the Court is obligatory, however, only for 
the legal question preliminary to the settlement of the dispute 
on its merits. 


201. The provisions authorized by the League with re- 
spect to communication and transit, have been applied in 
one instance: A dispute arose in 1922 between the Govern- 
ing Commission of the Saar Basin and the German Government 
concerning the application of the Berne Convention of 1890 
to the Saar Railway System. The matter was referred by the 
Advisory and Technical Committee for Communication and 
Transit, to a Commission of Inquiry. The Commission “de- 
cided to leave out of account the legal arguments as to prin- 
ciples put forward by both sides and to endeavor to solve the 
difficulties from a practical and technical point of view.’ ® 
It, therefore, drafted an agreement between the parties and 
this, having been approved by the Advisory and Technical 


4 Article 31, Statute on the International Régime of Railways; Ar- 
ticle 21, Statute on the International Régime of Maritime Ports. 

5 First Report of the Advisory and Technical Committee for Com- 
munication and Transit, July 24th, 1923, p. 3. 


162 THE SENATE AND THE COURT 


Committee, was ratified by both the German Government and 
the Governing Commission of the Saar Territory. 


202. The Court has obligatory jurisdiction under certain 
transit clauses of the Treaties of Versailles, St. Germain 
and Trianon: Articles 380-386 of the Treaty of Versailles 
provide for the international use of the Kiel Canal and refer 
any dispute as to their interpretation to the “jurisdiction in- 
stituted for the purpose by the League of Nations.” Article 
37 of the Statute states that the Court will be such tribunal. 
Articles 327 of the Treaty of St. Germain and 310 of the 
Treaty of Trianon specifically refer to the Permanent Court 
of International Justice. In such an instance the procedure 
prescribed by the Barcelona and Geneva conventions does not 
apply, for the parties are not bound to resort to the Permanent 
Advisory and Technical Committee of the League but may 
apply to the Court for a decision. 


203. One appeal has been made to the Court under Ar- 
ticle 386 of the Treaty of Versailles: This case concerned 
the passage of the S. S. “Wimbledon” through the Kiel Canal. 
The S. S. “Wimbledon” was a British steamship chartered by a 
French armament firm and was engaged in the transport of 
war material to the port of Danzig for the use of Poland. 
The Polish-Russian war was not concluded at this period 
(March, 1921); therefore the German authorities refused 
the ship passage through the Kiel Canal on the ground that the 
neutrality of Germany would be violated were it to permit the 
transit, through German territory of war material for the use 
of a country engaged in war. This refusal was considered a 
violation of Article 380 of the Treaty of Versailles and a com- 
plaint was made to this effect by the Governments of Great 
Britain, France, Italy and Japan, requesting a judgment of 


6 See Chapter VIII. 


TRANSIT AND COMMUNICATIONS 163 


the Court, France claiming compensation for the loss suffered." 
The decision of the Court was rendered in favor of the Allied 
Powers.® 


204. The Court possesses a two-fold jurisdiction in mat- 
ters of transit and communication: One function of the 
Court is that of a Court of appeal under the procedure estab- 
lished by the conventions of Barcelona and Geneva; a second 
function is that of a Court of first instance under those clauses 
of the Treaties that specifically so provide. In the former 
instance, recourse to the Court is optional since any arbitral 
tribunal may be substituted for it; in the latter instance recourse 
to the Court is obligatory. Under the former procedure, if the 
one case dealt with thereunder may be regarded as a precedent, 
legal arguments are disregarded and the settlement of the mat- 
ter depends upon several bodies, being referred from one to 
the other for enquiry and approval; under the latter procedure 
the settlement is based on legal arguments, it is rapid and effec- 
tive, providing for the interpretation of the disputed clause and 
for adequate compensation. 


205. The adoption of special provisions in the Statute to 
deal with questions of transit was due toa British proposal: 
The Committee of Jurists in preparing the Statute made no 
recommendation for a special chamber. The insertion of pro- 
visions establishing a special chamber to deal with questions of 
communication and transit, as provided by Article 27 of the 
Court Statute is due to a British amendment submitted to the 
Third Committee of the First Assembly. The reason for this 


tT Article 380 follows: 
The Kiel Canal and its ‘approaches shall be maintained free and 


open to the vessels of commerce and of war of all nations at peace 
with Germany on terms of entire equality. 
8 For narrative, see Annex I. 


164 THE SENATE AND THE: COURT 


amendment, as stated by the delegates of Great Britain, 
was that the disputes in question had a technical character, and 
a special chamber having been constituted to deal with labor 
cases—‘“‘it would be unreasonable not to extend the principle 
adopted in lator questions to the other technical questions.” ® 
During the discussions it was pointed out that the Second Com- 
mittee of the Assembly was making provisions for the ap- 
pointment of a body to deal with the technical questions and that 
questions coming before the Court would have previously been 
before such experts, thereby diminishing the technical char- 
acter of the questions submitted. But the insistence of the 
British representative, Sir Cecil Hurst, supported by the rep- 
resentative of South Africa, Viscount Cecil, prevailed and the 
Article was adopted.’® 


206. Article 27 of the Court Statute provides a special 
chamber for transit and communications: As adopted, it 
provides that a special chamber of five judges shall be selected 
by the Court every three years for the purpose of hearing and 
determining cases relating to transit and communication, par- 
ticularly those referred to in Part XII of the Treaty of Ver- 
sailles and the corresponding portion of other treaties.* The 
regulations governing national judges and the assistance of 


9 Records of the First Assembly, Committees, Vol. I, p. 308. 

10 The only really apparent reason for the constitution of the cham- 
ber on transit seems to be contained in an observation of M. Fernan- 
dez to the effect that “it was desirable to put the procedure in labour 
and transit questions on an equal footing, in order to avoid creating 
the impression that the establishment of a special chamber for the first 
was a concession to class interests.” (Records of the First Assembly 
Committees, Vol. I, p. 399.) 

11 The first members of the special chamber were: M. Weiss (Presi- 
dent) ; M. Barbosa, M. Nyholm, Mr. Moore and M. Oda; with M. An- 
zilotti and M. Huber as substitutes. The present members are the 
same with the exception of M. Pessoa elected in the place of M. Barbosa. 


TRANSIT AND COMMUNICATIONS 165 


assessors are similar to those contained in Article 26 of the 
Statute concerning labor cases. No use has been made, as 
yet, of this chamber. In the case of the Kiel Canal, the only 
matter thus far submitted to the Court under Part XII of the 
Treaty of Versailles, neither party requested reference to this 
chamber, presumably because the question involved a principle 
of international law concerning the neutrality of international 
waterways, and was not a technical problem which would have 
necessitated the presence of assessors. 


207. The special transit chamber of the Court appears to 
duplicate the Advisory and Technical Committee of the 
League: Both bodies are constituted for the purpose of deal- 
ing with cases relating to transit and communications, particu- 
larly those arising under Part XII of the Versailles Treaty. 
Technical assessors in the chamber are to furnish the expert 
knowledge possessed by the Advisory and Technical Committee 
of the League. Submission of the majority of transit disputes 
to the Committee is, however, obligatory under the provisions 
of the various conventions while submission to the special cham- 
ber of the Court is nowhere specifically provided for. In 
view of these circumstances, it appears probable that the Ad- 
visory and Technical Committee will be the body responsible 
for the settlement of disputes with relation to transit. 


CHAPTER XIV 
JURISDICTION OVER DOMESTIC QUESTIONS 


208. The determination of what constitutes a domestic 
question is ordinarily regarded as the exercise of a sov- 
ereign right: States regard as domestic any matter, the 
execution of which takes place within their own territory and 
which has not been made the subject of an international agree- 
ment. The exercise of the sovereignty of a state, in its strictest 
sense, enables a nation to determine upon what conditions it 
will have intercourse with other nations. On this principle 
such matters as the tariff, immigration, labor, and coastwise 
traffic, come within the meaning of domestic affairs. 


209. Members of the League have assigned to the Council 
the authority to determine when a controversy is of a 
domestic nature: The Covenant provides that the Council 
may consider any matter which threatens war, when called to 
its attention by a member of the League; or any question which 
is suitable for arbitration, when submitted by the parties; or any 
matter submitted by one party for inquiry. If, however, under 
such circumstances, one of the parties alleges the question to 
be domestic, the Council will determine the fact, and upon find- 
ing it to be such it may make no recommendation for a settle- 
ment. This provision transfers from members of the League 
to the Council the right to determine the nature of their internal 
affairs when they are called into question by a controversy over 
which the Council takes jurisdiction.’ 

1The reluctance of the United States Government to abandon any 


part of its right to determine what constitutes a domestic question in- 
166 


JURISDICTION OVER DOMESTIC QUESTIONS 167 


210. The Covenant undertakes to confer upon the Council 
a similar right with respect to non-members of the League: 
Article 17 provides whenever a dispute arises between a mem- 
ber of the League and a non-member or between two non- 
members, such states shall be invited to accept the provisions 
of Articles 12-16 of the Covenant for the purposes of settle- 
ment of the dispute upon conditions to be determined by the 
Council. Failure to accept the invitation and subsequent resort 
to war makes a non-member liable to the application of sanc- 
tions; or, short of war, the Council may make recommendations 
to prevent hostilities. In the event that a non-member state ac- 
cepted the invitation and raised the question whether the dispute 


duced Senator Lodge to propose the following reservation on Nov. 
19th, 1919, when the question of ratifying the Peace Treaties was be- 
fore the Senate: 

The United States reserves to itself exclusively the right to decide 
what questions are within its domestic jurisdiction and declares that 
all domestic and political questions relating wholly or in part to its 
internal affairs, including immigration, labor, coastwise traffic, the 
tariff, commerce, the suppression of traffic in women and children 
and in opium and other dangerous drugs, and all other domestic 
questions, and solely within the jurisdiction of the United States 
are not under this treaty to be submitted in any way either to ar- 
bitration or to the consideration of the Council or of the Assembly 
of the League of Nations, or any agency thereof, or to the decision 
or recommendation of any other power. 

Senator Knox, during the course of the debate, defined domestic 
questions to include: 

“Our conservation policy, our immigration policy, our right to 
expel aliens, our right to repel invasion, our right to maintain mil- 
itary and naval establishments, or coaling stations within our own 
borders or elsewhere, as the development and protection of this coun- 
try might demand, our right to make necessary fortification of the 
Panama Canal, or on our frontiers, our right to discriminate between 
natives and foreigners in respect to rights or property and citizenship 
and other matters of like character.” Address before the Senate on 
March Ist, 1919. 


168 THE SENATE AND THE COURT 


was international, the Council would decide the matter. In the 
event that a state refused the invitation, the Council could pro- 
ceed as though the matter were international or it might, of 
its own volition, request an opinion from the Court. An in- 
stance occurred wherein the Council assumed a dispute to be 
international and proceeded without the consent of the State, 
namely, in the matter of the status of Eastern Carelia. 


211. Any domestic question may be submitted to the 
Court for an advisory opinion: Article 14 of the Covenant 
limits the cases to be submitted to the Court to those of an 
international character. The Advisory Committee of Jurists 
limited questions in a like manner but the revision of the draft 
Scheme by the Assembly removed the limitation. It appears, 
however, that any party may raise the question whether the 
issue is international whenever it affects an actual controversy 
arising under Articles 11, 12, 13, 15 or 17 of the Covenant and 
in such case the Council is bound under par. 8 of Article 15 
to determine the fact. The Council may take its decision upon 
any ground it sees fit; and it may determine the fact itself, or 
refer it to the Court or to a special committee of jurists. When 
the matter is referred to the Court, it is possible that the Court, 
upon complaint of a party, may examine the question whether 
the decision taken by the Council was in accordance with exist- 
ing rules of law or with the established procedure, or it may 
decline to do so. In the matter of the German settlers, Poland 
contended before the Court that the matter had not been brought 
to the attention of the Court in the manner prescribed by the 
rules adopted by the Council for the conduct of minority com- 
plaints. In that instance, the Court was of the opinion that 
the Council had complied with the proper procedure and that 
the Court would not inquire too closely into the matter. On 
the other hand, the Council was proceeding under Article 14 
of the Covenant in submitting the matter of the status of 


JURISDICTION OVER DOMESTIC QUESTIONS 169 


Eastern Carelia but the Court held that an existing rule of 
law stipervened over the provision contained in Article 17 
of the Covenant which undertook to apply the Covenant to non- 
signatory states. But, again, the Council may assume that the 
question is theoretical and does not relate to any existing con- 
troversy in which case it will not be possible to raise the question 
of its character and the Council may proceed to submit a ques- 
tion dealing with domestic affairs. In this manner it would be 
possible to establish definite international rules concerning im- 
migration, by submitting a question concerning the agenda 
which the International Labor Office is now preparing on immi- 
gration.?, Conventions based upon such principles when ratified 
would constitute international law for all states accepting the 
convention and by weight of opinion would direct the inter- 
national policy. An adherent to the Court Statute, not a mem- 
ber of the League, and not in sympathy with the international 
regulation of immigration would thus find itself in the position 
wherein its Court would be interpreting and facilitating the ap- 
plication of a convention which the government of the adherent 
had refused to ratify on the ground that it considered the mat- 
ter of immigrant inspection and regulation to be a domestic 
matter. Nor should the fact be overlooked that every conven- 
tion emanating from the International Labor Conference brings 
that subject within the provisions of the terms of the Treaty 
of Versailles. And, lastly, while states may not request ad- 
vice directly, they may do so through the Council. Should 
France so desire it may request the Council to obtain from the 


2It has been announced that the next session of the International 
Labor Conference will take up the question of dealing with the in- 
spection of immigrants on board ship, with the view to drafting a con- 
vention for its regulation; and also the codification of rules relating 
to seamen’s articles of agreement and the general principles under- 
lying the inspection of working conditions of seamen. (N. Y. World, 


October 4th, 1925.) 


170 THE SENATE AND THE COURT 


Court an advisory opinion upon its competence to pay its debts 
and at what rate, without respect to any particular state. The 
Court, under Article 50 of the Statute may appoint a com- 
mission of inquiry and communicate its findings to the Council. 
These judicial findings could then be offered as a basis for 
negotiation which other states would find difficulty in opposing 
but without having had the opportunity to intervene as inter- 
ested parties, and present information and arguments by com- 
petent counsel. 


212. The principles which will guide the Court in deter- 
mining whether a matter is domestic or international have 
not been ascertained: The rules which will guide the Court 
are wholly discretionary. Where the matter alleged to be do- 
mestic is a matter of stipulation in treaties, the Court will have 
no difficulty in finding a rule of law, as it did in the matter 
of the Nationality Decrees in Tunis and Morocco. When 
the matter involves questions of immigration, tariff, labor 
and similar questions which are not the subject of international 
agreement, the rule to be applied is less assured. It is for this 
reason, together with the fact that matters considered to be do- 
mestic by some states may nevertheless be referred for an ad- 
visory opinion, that it is believed there should be a firm 
foundation of law under a Court whose jurisdiction is now 
practically unlimited as to the subject matter within its ad- 
visory competence.® 


8Senator Lodge in his proposal to separate the Court from the 
League in Senate Resolution No. 122 (1924), evidently had this 
situation in mind when he attached to that project the following ad- 
ditional Article: 

Article LXV.—The Court shall not have jurisdiction to render 
advisory opinions on any question which affects the admission of 
aliens into the United States, or the admission of aliens to the 
educational institutions of the several states, or the territorial in- 
tegrity of the several states of the United States or concerning the 


JURISDICTION OVER DOMESTIC QUESTIONS 171 


213. The Geneva Protocol undertook to change the exist- 
ing rule under the Covenant: Article 5 of the proposed 
Protocol provided that the provisions of paragraph 8 of Article 
15 of the Covenant shall continue to apply. But Article 4 
provided for a system of compulsory arbitration to be conducted 
by the Council through committees of arbitration; and these 
committees were, upon the assertion of one of the parties that 
the dispute is domestic, to request the opinion of the Court 
through the Council. The opinion by the Court was to be 
binding and if the dispute was thus found to be domestic no 
recommendation was to be made other than to make a state- 
ment to that effect. This provision was in accordance with 
the terms of the Covenant; for when the Council finds a mat- 
ter to be domestic it may make no award; therefore, logically, 
its committees may make no award when the Court finds a dis- 
pute to be of a domestic nature. Such was the situation when 
the Japanese delegation pointed out that whenever a question 
was found to be domestic the system of obligatory jurisdiction 


question of the alleged indebtedness or money obligations of any state 
or the United States, or any question which depends upon or involves 
the maintenance of the traditional attitude of the United States con- 
cerning American question, commonly described as the Monroe Doc- 
trine, or other purely Government policy or any question which is 
considered by the Government of the United States to be a domestic 
question. 

‘The text of Article 5 as originally drafted, follows: 

The provisions of paragraph 8 of Article 15 of the Covenant shall 
continue to apply in proceedings before the Council. 

If in the course of an arbitration, such as is contemplated in Ar- 
ticle 4 above, one of the parties claims that the dispute, or part 
thereof, arises out of a matter which by international law is solely 
within the domestic jurisdiction of that party, the arbitrators shall 
on this point take the advice of the Permanent Court of International 
Justice through the medium of the Council. The opinion of the 
Court shall be binding upon the arbitrators, who, if the opinion is 
affirmative, shall confine themselves to so declaring in their award. 


172 THE SENATE AND THE COURT 


ceased to apply, and that under Article 5 and under Article 1v, 
relating to penalties, no means had been provided for the settie- 
ment of a dispute which was declared to be domestic, but were 
the parties to resort to war, one or both states would be declared 
to be presumptive aggressors and liable to the application of 
sanctions. It was the opinion of the Japanese representative 
that unless there were deleted from subdivision 1 of paragraph 
3 of Article 10, the following words: * “Or has disregarded a 
unanimous report of the Council, a judicial sentence or an 
arbitral award recognizing that the dispute between it and 
the other belligerent state arising out of a matter which. by 
international law is solely within the domestic jurisdiction of 
the latter state,” a nation resorting to war might become a pre- 
sumptive aggressor. The Japanese proposal, therefore, was: 
(1) Either to include domestic questions within the arbitral 
system; or (2) to permit states to settle them by war without 
incurring the risk of becoming presumptive aggressors and 
thus liable to military sanctions. The Japanese proposal pre- 
vailed : 


5 Subdivision I before amendment follows: 

Every state which resorts to war in violation of the undertakings 
contained in the Covenant or in the present Protocol is an aggressor. 
Violation of the rules laid down for a demilitarized zone shall be 
held equivalent to resort to war. 

In the event of hostilities having broken out, any state shall be 
presumed to be an aggressor, unless a decision of the Council, which 
must be taken unanimously, shall otherwise declare: 

1. If it has refused to submit the dispute to the procedure of 
pacific settlement provided by Articles 13 and 15 of the Covenant as 
amplified by the present Protocol, or to comply with a judicial sen- 
tence or arbitral award or with a unanimous recommendation of the 
Council or has disregarded a unanimous report of the Council, a 
judicial sentence or an arbitral award recognizing that the dispute 
between it and the other belligerent state arises out of a matter 
which by international law is solely within the domestic jurisdiction 
of the latter state; 


JURISDICTION OVER DOMESTIC QUESTIONS 173 


and there was added to subdivision 1, paragraph 3 of Article 
10, the following sentence: 


Nevertheless, in the last case [domestic questions] the State 
shall only be presumed to be an aggressor if it has not previously 
submitted the question to the Council or the Assembly, in accord- 
ance with Article II of the Covenant. 


There was also added to Article 5 a concluding paragraph as 
follows: 


If the question is held by the Court or by the Council to be a mat- 
ter solely within the domestic jurisdiction of the state, this deci- 
sion shall not prevent consideration of the situation by the Coun- 
cil or by the Assembly under Article II of the Covenant. 


214. The precise meaning of the proposal has been the 
subject of varying interpretations: There is not, and prob- 
ably will not be, an authoritative legal interpretation ; therefore 
each interpreter may take the view which seems to him most 
sound in reason and practical in application. It appears that 
under Article 15 of the Covenant whenever the Council finds 
a matter to be domestic it may take no action, not even making 
a recommendation. The matter then returns to the states for 
their adjudication through diplomacy or war as they may deter- 
mine. When the Council refers the matter to the Court and 
it finds the question to be domestic, the Council presumably 
will follow the advice of the Court and take no action under 
Article 15 of the Covenant; for the clear intention of Article 
15 is to exclude domestic questions from the competence of 
the Council. But under the proposed Protocol, instead of the 
question being returned to the parties, one party may allege 
that there is a threat of war or a situation which endangers 
good understanding and reopen the matter under Article 11 of 
the Covenant. The Council may then reconsider the matter. 
It is said that the Council may only consider the matter and un- 


174. THE SENATE AND THE COURT 


less both parties consent it may not make a recommendation. 
This contention is unimportant for the reason that under the 
Protocol, whether a state accepts or declines to accept the ref- 
erence to Article 11 if it proceeds to war it becomes automat- 
ically guilty of being an aggressor and liable to sanctions. 
Under the Covenant, the state has the right in domestic ques- 
tions to settle them as it sees fit without interference from the 
Council, including war, if necessary; under the Protocol it 
would lose this right and all protection against sanctions taken 
by other members of the League. This being true, under the 
Protocol the state would lose the right to settle a dispute involv- 
ing its alleged domestic affairs, except through the intervention 
of the Council, whenever diplomatic negotiations failed. 


215. The provisions of the Geneva Protocol were intended 
to apply to non-members of the League: Article 16 of the 
Protocol extended its application to all controversies between a 
member and non-member of the League, but not to disputes 
arising between two non-members. Under such circumstances, 
the Council could have invited the non-member to accept the 
provisions of Article 17 of the Covenant, making applicable 
Articles 12-16, as exemplified in the Protocol. If such state 
had declined, the sanctions contained in Article 16 of the 
Covenant, as defined in the Protocol, would become applicable. 
This provision would have extended the provisions of the Jap- 
anese amendment to non-member states whenever a member of 
the League set in motion the machinery for the inclusion of such 
states in an inquiry and whenever the Council undertook to 
carry it out.6 Under such circumstances, whenever the Court 


®It is generally believed that the Japanese had immigration in mind, 
but whether or not such was the case, immigration, tariff, foreign debts, 
customs or any other question which threatened a rupture would come 
within the provisions adopted and would include non-members of the 
League if the other party were a member. 


JURISDICTION OVER DOMESTIC QUESTIONS 175 


was requested to give an advisory opinion to a committee of 
arbitration, its opinion would become involved in the procedure 
by which the Council would eventually re-establish its com- 
petence over a domestic question. 


216. The position of a state adhering to the Statute but 
remaining aloof from the organization which determines 
the policies of the Court calls for additional safeguards: It 
appears that such a state would assume a responsibility in hav- 
ing its Court participate in such decisions but it would have no 
voice in determining the policy of which they form a part. It 
is a serious question of international policy whether a great 
court of justice and eminent judges should be made the advisers 
to temporary committees of arbitration and whether their opin- 
ion should be declared to be mandatory upon a sub-committee 
and not binding upon the Council. It is not enough to guard 
against future similar contingencies by reserving domestic ques- 
tions from consideration by the Council, or from their submis- 
sion to the Court for an advisory opinion; but the Congress or 
Parliaments should, in a reservation, define domestic issues in 
order that the interpretation may rest with Congress or Par- 
liaments and not with the Council. And it may be found desir- 
able to stipulate that whenever a question arises concerning 
whether a dispute is of a domestic or international nature, af- 
fecting any country, the Court shall reach its decision through 
a judgment and not through an advisory opinion, in order that 
the judicial determination shall be final and not subject sub- 
sequently to political manceuvering. 


CHAPTER XV 
COMPETENCE WITH RESPECT TO WAR 


217. The general prevention of war is vested in the 
League of Nations by virtue of the Covenant, and the par- 
tial prevention of war is vested in treaties of mutual guar- 
antee: The competence to prevent war is vested in the 
League under the terms of a general treaty, namely the Cove- 
nant. Under this Covenant al] members of the League are 
bound to prevent war, or preserve peace; they are responsible 
to the Assembly and Council and take action as indicated by 
these bodies. The application of the terms of the Covenant 
having proved difficult in general, the League has approved of 
partial treaties and regional agreements and made an effort (in 
the Treaty of Mutual Guarantee) to place such agreements 
under the guidance of the Council. States are, however, free 
to form combinations for their own protection, and they have 
concluded treaties without any reference to or responsibility 
under the League. 


218. The general authorization to deal with threats of 
war is granted to the League under the Covenant: When 
acts of war have taken place it is ordinarily too late to consider 
peaceful methods of settlement. For this reason, the Covenant 
deals, in the first instance, with threats of war. Article 10 
establishes the principle that the territorial integrity and exist- 
ing political independence of all members of the League shall 
be maintained and that, in the event of any aggression or threat 
of aggression, the Council shall advise upon the means by which 

176 


COMPETENCE WITH RESPECT TO WAR 177 


such integrity shall be preserved. Article 11 provides that 
threats of war, whether affecting members of the League or 
not, shall be the concern of the whole League and it may take 
any action that may be deemed wise and effectual to preserve 
peace. But in order to take such action there must first be a 
complaint and it is, therefore, provided that any member of the 
League may bring to the attention of the Assembly or Council 
any circumstance which, in its judgment, threatens peace. 
This complaint is to be regarded as a friendly act. The 
Secretary-General, on receipt of the complaint, is authorized to 
call a meeting for the purpose of having the Council make a 
recommendation to the League. 


219. Sixteen disputes have been called to the attention 
of the Council under Article 11: These disputes included 
the following:* (1) Between Persia and Russia over the 
bombardment of the port of Enzeli, in 1920, wherein an act of 
force precipitated the appeal by Persia. The Council took no 
action and the parties settled the controversy. (2) Between 
Finland and Sweden over the Aaland Islands, in 1921, wherein 
no threat of war appears to have been involved but Great Britain 
exercised its friendly right to bring the matter to the attention 
of the Council which settled the controversy. (3) Between 
Albania and Jugoslavia over the Albanian frontier, in 1921, 
wherein war had already been in progress when Albania made 
its various appeals and the Conference of Ambassadors settled 
the controversy by establishing a frontier. (4) Between 
France and Great Britain over the Upper Silesian plebiscite in 
1921, submitted by the Supreme Council, wherein no threat of 
war existed but the Council recommended a boundary line to 
the Conference of Ambassadors, which this body accepted. 
(5) Between Austria and Hungary over the Burgenland, 


1For narrative of these controversies and their settlement, see 
Security Against War, Vols. I and II. 


178 THE SENATE AND THE COURT 


wherein fighting was in progress between the two countries at 
the time of the Austrian appeal, and the Conference of Am- 
bassadors settled the dispute, as one involving a boundary. 
(6) Between Finland and Russia over Eastern Carelia in 1922, 
submitted by Finland, wherein a threat of war may have been 
involved and which remains unsettled by reason of the refusal 
of the Court to render an opinion and of the impotence of the 
Council to proceed against a non-member state. (7) Between 
Bulgaria and states bordering on Bulgaria, in 1921, wherein 
Bulgaria alleged a threat of war, but since the other states 
denied the allegation, no action was taken by the Council. (8) 
Between Hungary and Roumania over the position of Hun- 
garian optants in Roumania wherein no threat of war was al- 
leged, but wherein the Council has taken no effective action. 
(9) Between Bulgaria and Greece, in 1923, over the position of 
Bulgarians in Western Thrace, wherein a threat of war was in- 
cipient and which question was not satisfactorily settled by the 
Council. (10) Between Lithuania and the Allied Powers, in 
1923, where the Memel Territory was captured by Lithuania 
before the Allied Powers requested the Council to settle the 
controversy. (11) Between Great Britain and Turkey over 
Iraq, submitted in 1923, and withdrawn. (12) Between Po- 
land and Czechoslovakia over the boundary of Jaworzina in 
1923, submitted by the Conference of Ambassadors, wherein 
a threat of war was incipient, involving the question whether 
the decision of the Conference delimiting the boundary had 
been final, and wherein the Court rendered an advisory opinion 
confirming this position. (13) Between Albania and Jugo- 
slavia, submitted by the Conference of Ambassadors in 1924, 
concerning the boundary at the Monastery of Saint Naoum, 
wherein a threat of war may have been incipient and wherein 
the settlement of the dispute by the Conference of Ambassadors 
was determined to be final through an advisory opinion by the 
Court. (14) Between Greece and Turkey concerning the ex- 


COMPETENCE WITH RESPECT TO WAR 179 


change of populations; submitted by Greece, in 1924, and 
settled in accordance with an advisory opinion of the Court. 
(15) Between Greece and Turkey concerning the expulsion of 
the Oecumenical Patriarch; submitted, in 1925, by Greece, for 
an advisory opinion through the Council and withdrawn. (16) 
Between Greece and Bulgaria over the alleged violation of the 
frontiers of each state by troops of the other, appealed by Bul- 
garia in October, 1925, wherein war appears to have been 
resorted to as an outcome of the failure to settle the former 
disputes referred by Bulgaria to the Council. From the fore- 
going record it is apparent that but few disputes involving a 
threat of war have been submitted and where such appears to 
be the unquestioned fact, namely between Persia and Russia, 
Albania and Jugoslavia, Finland and Russia, Bulgaria and 
neighboring states, or Memel and the Allied Powers, either the 
dispute was not settled by the Council under the terms of 
Article 11 or there was a resort to force which determined the 
nature of the settlement.” 


220. Disputes involving threats of war have not been 
submitted to the Council through invoking the powers of 
the Council under Article 11 of the Covenant: These have 
for the most part taken place between a member and a non- 
member of the League. Instances include (1) The Polish- 
Russian war of 1921 where France intervened independently. 
(2) The Greco-Turkish war wherein the Allied Powers were 
active in the settlement. (3) The Polish-Lithuanian war over 
Vilna wherein the Council failed to make a settlement. (4) 
The conquest of Eastern Galicia by Poland wherein both Coun- 


2 An exception appears to be afforded in the recent Greco-Bulgarian 
crisis. In this instance the Council met without delay, delivered an 
ultimatum and intimated that military forces were available, if within 
sixty hours the Greek troops had not evacuated the occupied territory. 
This action appears to be a logical continuation of the traditional pre- 
war attitude of the Great Powers toward Balkan incidents, 


180 THE SENATE AND THE COURT 


cil and Conference failed to act. (5) The invasion of Memel 
by Lithuanian irregulars wherein the Council confirmed the 
rights of conquest. (6) The occupation of Fiume, wherein 
Italy, a self-interested party settled the controversy. (7) The 
conquest of the Riffs conducted by two members of the Coun- 
cil, France and Spain. (8) The occupation of the Ruhr 
wherein one party, France, undertook enforcement of the terms 
of the Treaty of Versailles. 


221. In no instance involving a threat of war or general 
peace, as prescribed in Article 11, has the Court dealt with 
the merits of the case on a basis of law and justice: In 
each of the foregoing instances, whenever a settlement has 
been effected by other than the parties, political differences 
have been conciliated, but no judicial decision taken. In no 
instance has the Court been called upon for a judgment; but 
in four instances its advice has been sought, although not on 
the merits of the controversy. In two of these instances, the 
Conference of Ambassadors requested an opinion upon the 
finality of its own decision, in one instance the Mixed Com- 
mission for the Exchange of Greek and Turkish populations 
requested an interpretation, and in one instance the Council re- 
quested an opinion upon its own competence. The rule is estab- 
lished that it is the Council or the Conference of Ambassadors 
which possesses the competence to stop threats of war; that 
the Court has no competence under its Statute and that such 
competence as it has enjoyed has been as adviser to the Council 
and Conference. 


222. In certain instances disputes involving threats of 
war which one of the parties desired to submit to the Court 
for an advisory opinion have been withheld by the Coun- 
cil:* Instances occur in the matter of the Hungarian optants 


8 For statement of the cases, see Security Against War, Chapter 33, 
on Questions Withheld from the Court, p. 612. 


COMPETENCE WITH RESPECT TO WAR _ 181 


in Roumania wherein the former requested submission of the 
question to the Court, which request was not granted. Also 
in the matter of Memel wherein Lithuania proposed that the 
matter be referred to the Court which proposal the Allied 
Powers did not favor but requested instead a political ad- 
judication by the Council. Finally in the matter of Vilna 
wherein Lithuania proposed that action taken by the Council 
be submitted for decision to the Court but which request was 
withdrawn after opposition in the Assembly, which body made 
such submission appear to be impossible. 


223. Matters involving peace, as submitted under Article 
11, establish the rule that whenever a controversy sub- 
mitted to the Council is before the Conference of Ambassa- 
dors, the Council will not take jurisdiction under the 
authority conferred by Article 11: This rule was established 
during the Albanian-Jugoslav controversy in 1921. It was 
upheld in the matter of the invasion of the Burgenland; also 
in the Bulgarian-Macedonian dispute; and successfully invoked 
in the Italo-Greek dispute. The rule was also sustained in the 
interpretation given to Article 15 by the Special Committee of 
Jurists, following the Italo-Greek dispute. That Committee 
sustained the principle that the Council must refuse to consider 
the application, when the dispute already forms the subject of 
arbitration or judicial settlement. 


224. Matters involving peace, as submitted under Article 
11, establish the rule that the advisory competence of the 


4On that occasion the Council passed a Resolution of which the fol- 
lowing is the pertinent section: 

The Council of the League of Nations is informed that the Con- 
ference of Ambassadors has taken up the Albanian question and 
that it is discussing it at the present moment. In these circumstances 
the Council of the League of Nations considers it inadvisable to take 
up the question simultaneously. (Official Journal, Sept., 1921, 


p. 725). 


182 THE SENATE AND THE COURT 


Court is not in effect limited to the Council and Assembly: 
The matters of Jaworzina and Saint Naoum establish the rule 
that the Allied Powers, acting as the Conference of Ambas- 
sadors, may obtain advice from the Court through using the 
Council as a medium of communication. In this manner, a few 
states may avail themselves of a privilege not apparently open 
to other combinations of states, for the Allied Powers, being 
permanent members of the Council, control the submission of 
requests for such opinions. 


225. General authorization to deal with threats of rup- 
ture between members of the League is granted to the 
League under the Covenant: This provision is to be differ- 
entiated from those of Article 11 in that it is limited to members 
of the League and concerns disputes which, if they are likely 
to lead to rupture in relations, the members agree to submit 
to arbitration before resorting to war. Article 12 provides 
whenever a threat of war reaches the stage of a threatened 
rupture, members of the League agree that they will submit 
the matter to arbitration or judicial decision and that under no 
conditions will they resort to war until after three months 
following an award which must be given within a reasonable 
time. Threatened ruptures have occurred between Albania and 
Jugoslavia over the Albanian boundary, ending in war; between 
Italy and Greece, ending in the seizure of Corfu; between 
Lithuania and Poland, ending in the capture of Vilna; between 
Lithuania and the Allied Powers, ending in the capture of 
Memel ; between Italy and Jugoslavia ending in the annexation 
of Fiume to Italy; and between Greece and Bulgaria, culminat- 
ing in the recent invasion of Bulgarian territory. 


226. No matter in which a rupture between states was 
threatened has been referred to the Court: All of the fore- 
going matters have been settled either by force, or diplomatic 


COMPETENCE WITH RESPECT TO WAR _ 183 


intervention. In the matter of Corfu, Italy declined to permit 
any question to be submitted to the Court and in the matter of 
Memel, the Allied Powers preferred the intervention by the 
Council although in both instances resort to the Court was 
proposed by one of the parties. 


227. A general obligation to submit disputes to arbitra- 
tion before resort to war has been entered into by members 
of the League: Article 13 takes into consideration that, 
irrespective of threats of war which any member of the League 
may submit or of Article 12 wherein a rupture is threatened, 
there will arise disputes of a less grave character which may 
be considered to be generally suitable for submission to arbitra- 
tion. In the event that these cannot be settled satisfactorily 
by diplomacy, members agree to submit them to arbitration. 
But unfortunately this Article permits of certain ambiguities. 
It provides that under this agreement states may recognize the 
dispute to be suitable for arbitration, and they may determine 
when diplomacy has failed; and although certain classes of 
legal disputes, namely questions as to the interpretation of a 
treaty, any question of international law, the existence of any 
fact which, if established, would constitute a breach of an in- 
ternational obligation, and the nature and extent of the repara- 
tion to be made for any such breach, are specified they are 
declared to be only generally suitable. 


228. Four disputes have been submitted to the Council 
under Article 15, one of which has been the subject of an 
advisory opinion by the Court:*® (1) In the matter of the 
Tunis and Morocco Nationality Decrees, France claimed, under 
paragraph 8 of Article 15, that the matter was domestic. The 
French contention was submitted to the Court for an advisory 
opinion. (2) The Greek appeal concerning the Italo-Greek 


5 For summary of opinions and judgments, see Annex I. 


184 THE SENATE AND THE COURT 


dispute referred to Article 15 and certain legal questions arose 
therefrom. The interpretation of these questions was, how- 
ever, not referred to the Court by the Council but to a committee 
of jurists. (3) An appeal under Article 15 was made by 
Albania in December, 1924, with respect to hostilities with 
Jugoslavia ; this appeal was withdrawn in February, 1925. (4) 
In the dispute between Great Britain and Turkey concerning 
Mosul, Turkey recognized the authority of the Council under 
Article 15 but this recognition has been recently revoked by 
Turkey and legal questions arising from this action have been 
submitted to the Court for an advisory opinion. The inter- 
pretation of Article 15 is not directly involved, since the ques- 
tions concern the general nature of the decision to be taken by 
the Council. 


229. General authorization to deal with disputes between 
members and non-members of the League or between non- 
members of the League is granted to the League under the 
Covenant: Article 17 authorizes the Council, in the event of 
a dispute between a member and a non-member of the League 
or between two non-members of the League, to invite the 
non-members to accept the obligations of membership in the 
League, upon such conditions as the Council may deem just. 
If the invitation is accepted, the provisions of Articles 12-16, 
as modified by the Council, become applicable. If the non- 
member refuses the invitation the Council may proceed with 
its inquiry and make a recommendation. If both non-member 
states refuse to accept the invitation, the Council may make 
recommendations or take measures to prevent hostilities between 
them. 


230. The general authority granted to the League under 
the Covenant to settle disputes leaves little opportunity 
for the Court to apply judicial decisions to the prevention 


COMPETENCE WITH RESPECT TO WAR 185 


of war: Under Article 11, the complaints are submitted to 
the Council which alone has authority to consider the matter 
and make a recommendation. Under Article 12, the parties 
agree to resort to arbitration, judicial decision or inquiry. 
Under Article 13, the parties agree to submit to arbitration or 
judicial decision any dispute which cannot be settled through 
diplomatic channels. Under Articles 15 and 17 it is the Council 
which receives the complaint and is authorized to act. In 
three, therefore, out of the five instances, the Council is the 
designated tribunal, and in the other two instances the matters 
thus far submitted to the Court have been referred by way of 
the Council for an opinion. In view of the preference thus 
given to the Council in the settlement of disputes and in view 
of the obligations undertaken by members to submit matters to 
the Council under Articles 12, 13 or 15 and in the absence of 
any obligation incurred to submit any dispute directly to the 
Court, it appears that the place of the Court in the international 
scheme for the settlement of disputes must continue to be largely 
advisory to the Council, for whatever obligation states have 
incurred to submit disputes, recognizes the competence of the 
Council under the Covenant, and largely ignores the Court 
under the Statute. It is evident, however, from the record 
of submissions and the prevalence of war that the general pre- 
vention of war as envisaged under the Covenant will give way 
to regional agreements to prevent war on a basis of mutual 
interest. 


231. The general authorization to the League to prevent 
war under the Covenant is modified by treaties of security 
applicable independently of the Covenant: The majority of 
these agreements make no mention of a pacific settlement of 
disputes and their application is outside the terms of the Cove- 
nant even though the signatories are members of the League. 
This method of preventing war consists of a pledge from the 


186 THE SENATE AND THE COURT 


signatories to come to the assistance of each other in case of an 
attack by the state against which the alliances are framed. 
Instances of such treaties are: (1) The Little Entente, pro- 
viding that Czechoslovakia, Roumania and Jugoslavia will come 
to the assistance of each other in case of an unprovoked attack 
by Hungary; thereby excluding the possibility of war with 
Hungary.® (2) Alliances between France and Belgium, France 
and Poland, France and Czechoslovakia, resulting in a combina- 
tion of an army of approximately 1,200,000 men against the 
permitted German army of 100,000 men. The Little Entente 
made no mention of submitting their disputes with Hungary 
first to arbitration, neither do the treaties between France and 
her allies make provision for submission of disputes with 
Germany to such procedure, preliminary to resort to war.* 


232. The general authorization to the League to prevent 
war under the Covenant is modified by the regional secu- 
rity treaties of arbitration negotiated at Locarno which 
include commissions of conciliation: These treaties, con- 
cluded between Germany and France, Belgium, Czechoslovakia - 
and Poland, respectively, provide for two categories of disputes 
which may arise between the parties: (1) Those concerning 
the rights of parties; and (2) all other disputes. The follow- 
ing procedures are provided: (1) A dispute concerning the 
rights of parties may, by agreement between them, be submitted 
(a) to the Permanent Conciliation Commission, established by 


6 Hungary is permitted by the Treaty of Trianon to maintain an 
army of 35,000; the combined army of the Little Entente numbers over 
ten times as many men. 

7 Provision for pacific settlement of disputes between the signatory 
parties themselves are to be found in a few defensive alliances; the 
Franco-Czech Treaty and the alliance between Esthonia and Latvia be- 
ing instances. The Italo-Jugoslav Treaty, however, where a real dan- 
ger of conflicting interests exists, provides for no pacific settlement of 
disputes between Italy and Jugoslavia. 


COMPETENCE WITH RESPECT TO WAR _ 187 


the Locarno Treaties for this purpose; (b) in case no agree- 
ment is reached before this Commission, the dispute is to be 
submitted by special agreement to the Court, or to an arbitral 
tribunal; (c) but if the parties cannot agree on the terms of 
submission, after one month’s notice either of them may bring 
the dispute before the Court. (2) Disputes not involving the 
rights of parties will be (a) submitted, without any special 
agreement to the Permanent Conciliation Commission; (b) if, 
however, within a month from the termination of the work of 
the Commission the parties have not reached an agreement, the 
matter may at the request of either party be brought before the 
Council of the League, under Article 15 of the Covenant. In 
either of these cases, the Conciliation Commission, the Court, 
the arbitral tribunal, or the Council are all authorized to lay 
down provisional measures. Thus, to the mechanism of the 
Council and Court, there are here added arbitral tribunals and 
a Conciliation Commission for the prevention of war. 


233. The general authorization to the League to prevent 
war under the Covenant is modified by the Locarno Treaty 
of Mutual Guarantee: This Treaty between Germany, 
France, Belgium, Great Britain and Italy, respectively, makes 
provisions for the prevention of war by means of (1) pacific 
settlement and (2) military guarantees. The procedure for 
pacific settlement is as follows: Any question concerning the 
rights of parties shall be submitted to judicial decisions; all 
other questions are referred to a conciliation commission; and 
if the proposals of this commission are not accepted, the 
Council will take up the matter under Article 15 of the Cove- 
nant. The military guarantees are intended to effect a preven- 
tion of war by forming a combined force of 1,500,000 against 
100,000 should Germany violate the Treaty and attack France, 
or a combined force of 980,000 against 700,000 should France 
violate the Treaty and attack Germany. 


188 THE SENATE AND THE COURT 


234. Treaties of mutual security leave little opportunity 
to the Court to apply judicial decisions to the settlement 
of questions arising thereunder which provoke war: Under ~ 
defensive treaties no case is likely to go to the Court, since 
no provision is made for submission of disputes other than 
between a small number of signatory states.* Under the 
Locarno Arbitration Treaties, the Court is a court of appeal 
from a commission of conciliation, and resort to it is optional, 
for arbitral tribunals may also be selected; finally in the Locarno 
Treaty of Guarantee the Court has jurisdiction over questions 
involving the rights of parties. It does not, however, appear 
to be specifically determined whether in this instance the Court 
will take jurisdiction upon appeal of one of the parties, or 
whether an agreement has to be reached by the parties for sub- 
mission, and if it cannot be reached what action shall be taken. 


235. The system established under the Covenant and 
regional agreements authorizes resort to war to preserve 
the status quo: (1) Under Article 12, if two of the mem- 
bers of the League have a dispute which is submitted to arbi- 
tration, and with the award of which neither party is satisfied, 
they may resort to war after an interval of three months from 
the date of the award. (2) Under the same Article, if there 
is a similar dispute between similar parties and the matter is 
submitted to the Council which makes a recommendation which 
neither party is willing to accept, then the parties may, after 
three months, resort to war. (3) Under Article 15, if the 
dispute is referred either to the Council or to the Assembly 
and either body renders a decision, except as to the parties 
in dispute, and this decision is unacceptable to both parties to 
the dispute, then they may resort to war. (4) Under Article 
15 if neither the Council nor the Assembly can reach a decision 


8 See pp. 81, 84, 85. 


COMPETENCE WITH RESPECT TO WAR _ 189 


which is unanimous, except for the parties to the dispute, then 
the parties thereto may resort to war. (5) All conflicts be- 
tween states, not members of the League, would appear to be 
permissible between themselves in the settlement of a dispute, 
although the Council has the right to interfere in them. (6) 
The members of the League may participate in any war under 
the stipulations of Article 11, that “any war or threat of war, 
whether immediately affecting any of the members of the 
League or not, is hereby declared a matter of concern to the 
whole League, and the League shall take any action that may 
be deemed wise and effectual to safeguard the peace of na- 
tions.” (7) The members of the League may engage in a 
general co-operative war to protect the covenants of the League 
whenever the Council so recommends. Under the regional 
agreements between France and Central European countries and 
under the Little Entente Treaty, the Italo-Jugoslav Agreement, 
and the alliances between Esthonia and Latvia, war is the 
authorized method of settling a dispute with the country against 
which they are drawn; while arbitration is in some instances 
to decide disputes among the beneficiaries under the combina- 
tion. Under the Locarno Treaty of Mutual Guarantee, the 
military forces of the various guaranteeing powers may be 
called into action. 


236. The European policy of authorized warfare to 
preserve the status quo is not in consonance with the 
policy of the United States: The policy of authorizing war 
between states to maintain the principles of the Constitution or 
that any group of states should be in a position to engage in 
war for this purpose was definitely repudiated when the United 
States Constitution was adopted. During the debate in the 
Senate over the ratification of the Treaty of Versailles, this 
method of settling disputes formed one of the main grounds 


190 THE SENATE AND THE COURT 


of objection.® During the discussion which has followed, there 
has been a division of opinion concerning the meaning of Article 
16 of the Covenant and whether members of the League are 
under obligations to supply military forces when requested by 
the Council. There should be no doubt concerning this rule, 
namely when the Council is in agreement to resort to war to 
stop war, the forces of its members may be called into action 
under Article 16 of the Covenant to support the decision of the 
Council. Since the members of the Council possess among 
them the overwhelming majority of the military forces in 
Europe (exclusive of Russia and Turkey) the decision to resort 
to force taken by the Council presupposes the readiness of its 
members to enforce the decision.t° But the practical applica- 
tion of the rule will depend somewhat upon the risk to the forces 
brought into action by the members of the Council. Where 
the disproportion between the forces at the command of the 
Council and those engaged in violating the Covenant is great, 
the rule will be applied with discretion. Such was the case in 
the Russian-Polish war, the Greco-Turkish war and the Italo- 
Greek crisis wherein the Council refrained from action. But 
in the Greco-Bulgarian crisis, the disproportion in forces in 
favor of the Allied Powers being great, the risk was propor- 
tionately small and the Council acted promptly. 


237. The authorization of war to settle international dis- 
putes as the post-war European policy led to the initiation 
of an outlawry of war movement in the United States: 


® Senate Reservation No. 3 provided that the United States would 
assume no obligation to preserve the status quo or to provide military 
or naval forces for the purpose without the consent of Congress in 
each particular case. (For text of resolutions, see The Senate and the 
League of Nations, by Henry Cabot Lodge, p. 180.) 

10 The action taken by the Council in the Greco-Bulgarian crisis, 
should leave no doubt whatever concerning the military powers under 
Article 16. 


COMPETENCE WITH RESPECT TO WAR 191 


The first official expression of this policy appeared during the 
debate over the ratification of the Treaty of Versailles, when 
Senator Knox, in 1919, proposed an international league where- 
under war was to be declared an international crime and any 
national engaging in war, except in self-defense, was to be 
punished by the world as an international criminal. It was the 
belief of Senator Knox that a League, formed on the basis of 
abolishing war, would “carry with it a minimum of loss of our 
sovereignty; it would relieve us from participation in the broils 
of Europe; it would preserve the Monroe Doctrine and save 
America from the results of European aggression and intrigue; 
it would reduce to the minimum the causes of war; and would 
make the waging thereof otherwise than in self-defense when 
attacked, a public crime punishable by the combined forces of 
the world.” 14 The ratification of the Treaty of Versailles 
failed and the Knox proposal made no immediate progress, with 
the result that the Covenant with its authorization of war 
became the acknowledged method of obtaining security in 
Europe. 


238. The practice of war since 1919 in the settlement of 
international disputes has developed the idea of outlawry 
of war into a national movement: This policy took official 
form on February 14th, 1923, when Senator Borah introduced 
a resolution in the Senate (No. 441) which provided that war 
between nations should be outlawed as an institution or means 
for the settlement of international controversies by making it 
a public crime under the law of nations. The preamble to this 
resolution declared: (1) That war is the greatest. existing 
menace to society and has become so expensive and destructive 
that it not only causes stupendous burdens of taxation but 
threatens to destroy civilization. (2) That alliances, leagues 
and plans which rely upon force as the ultimate power for the 


11 Address before the Senate, March Ist, 1919. 


192 THE SENATE AND THE COURT 


enforcement of peace carry the seeds either of their own 
destruction or of military dominance to the subversion of 
liberty and justice. (3) That resolutions or treaties outlawing 
certain methods of killing will not be effective so long as war 
remains lawful and, therefore, there must be organized rules 
against war. (4) That in the constitutional convention of 
1787 it was successfully contended that the use of force when 
applied to people collectively was unsound in principle and 
tantamount to a declaration of war. (5) That an agreement 
of a judicial character similar to that of the United States 
Supreme Court would not shackle independence nor impair the 
sovereignty of any nation. In accordance with these principles, 
the Resolution provides that: (1) War between nations should 
be outlawed as an institution or means for the settlement of 
international controversies by making it a public crime under 
the law of nations. (2) Every nation should be encouraged 
by solemn agreement or treaty to bind itself to indict or punish 
its own international war breeders or instigators and war 
profiteers under powers similar to those conferred upon our 
Congress by the Federal Constitution. In order to facilitate 
the application of these proposals, the Resolution stipulates as 
a first step the creation and adaptation of a code of international 
law of peace, amplified and expanded and based upon equality 
and justice between nations; and as a second step the creation 
of a judicial substitute (or adaptation of an existing interna- 
tional court) for war in the form or nature of an international 
court modeled upon the United States Supreme Court to 
possess affirmative (compulsory) jurisdiction to hear and decide 
all purely international controversies, as defined by the code 
or arising under treaties. (3) The judgments of the proposed 
court are to be enforced through the respect of all enlightened 
nations for judgments resting upon open and fair investigations 
and impartial decisions and the compulsory power of enlight- 
ened opinion. It is the intention of the resolution that a statute 


COMPETENCE WITH RESPECT TO WAR 193 


making war a crime shall be part of the code of international 
law. 


239. The principles underlying this movement have been 
defined: 1” The further use of war as an institution for the 
settlement of international disputes shall be abolished. (2) 
War between nations shall be declared to be a public crime 
except for the purposes of self-defense. (3) All annexations, 
seizures or exactions by force, duress, or fraud shall be null and 
void. (4) The international laws of peace shall be based upon 
equality and justice between nations and shall be expanded, 
adapted and brought down to date from time to time by con- 
ventions. (5) A judicial substitute for war shall be erected 
in the nature of an international court to possess affirmative 
jurisdiction to hear and decide all international controversies, 
as defined by the code or arising under treaties. (6) The 
jurisdiction of the court shall not extend to matters of govern- 
mental, domestic or protective policy unless one of the disputing 
parties has by treaty or otherwise given another country a 
claim that involves these questions. The classes of these dis- 
putes shall be incorporated in the code of law. (7) War must 
be outlawed before the Court is given affirmative jurisdiction. 
(8) National armaments are to be reduced to the lowest point 
consistent with domestic safety and reasonable international 
requirements. (9) Nations are to make a public report each 
year setting forth fully their armaments, thereafter to be veri- 
fied by authorized committees, acting under the authority and 
jurisdiction of the Court. (10) Nations agree to bind them- 
selves to indict and punish their own war instigators and war 
profiteers. 


240. The growth of public opinion in the United States 
in favor of the abolition of war has turned the attention of 


12As formulated by the Hon. S. O. Levinson, Chairman of the 
American Committee for the Outlawry of War (1925). 


G4) THE SENATE AND THE COURT 


the League in this direction: In 1923, largely as the result 
of the visit of Viscount Cecil to the United States, the Treaty 
of Mutual Assistance declared, in Article 1, that aggressive war 
is an international crime which signatories undertake not to 
commit. The Geneva Protocol which, in 1924, succeeded the 
Treaty of Mutual Assistance, asserted that a war of aggression 
constitutes the violation of the solidarity of the members of the 
international community and is, therefore, an international 
crime. These undertakings of the League appear to depart 
from the American proposals in certain fundamental particu- 
lars: (1) The United States proposal contemplates a positive 
convention in which war is defined and condemned and its use 
made illegal; the League proposal contemplates that war shall 
be a crime for some states and a sanction for other states. (2) 
The United States proposal contemplates a system whereby 
war shall not be resorted to as a means of settling disputes 
whereas the League proposal is a scheme for compulsory ar- 
bitration, the evasion of which constitutes a crime. (3) The 
United States scheme proposes a code of law as a condition 
precedent to granting the Court obligatory jurisdiction; the 
League plan would grant such jurisdiction without a code, 
deeming the Covenant as amplified, to be sufficient. (4) The 
United States scheme proposes to create or adapt a court with 
jurisdiction to deal only with international controversies upon 
a judicial basis; the League plan continues the present Court 
with its advisory and non-judicial functions. (5) The United 
States proposal contemplates only that good faith and public 
opinion shall constitute the sanctions; the League plan contem- 
plates military force as the sanction for security under the 
present system. (6) The United States proposal presupposes 
a judicial determination of the fact of the responsibility for 
war committed under an international statute of prohibition, 
whereas the League plan would make the prevalence of war 
tpso facto evidence of refusal to arbitrate and the application 


COMPETENCE WITH RESPECT TO WAR 195 


of sanctions automatic without judicial determination of the fact 
of the culpability of a nation. (7) The United States proposal 
makes judgments, resting upon open and fair investigations and 
impartial decisions the basis for enforcement; the League plan 
would rely upon automatic procedure which requires no investi- 
gation nor impartial decision. (8) The United States pro- 
posal relies upon a court of justice to hear and determine 
international controversies; the League plan contemplates re- 
sort to the Council as chief executive of its proposed system. 
241. A coalition agreement has been entered into for the 
purpose of uniting the peace forces in the United States: ** 


13 The signatories to this coalition agreement include the following: 
Bruce Bliven, Associate Editor, New Republic, formerly editor of the 
New York Globe; E. C. Carter, Secretary, The Inquiry, formerly 
Senior Secretary of the Y. M. C. A. with the A. E. F. in France; 
John H. Clarke, former justice of the Supreme Court of the United 
States, now President of the League of Nations Non-Partisan Associa- 
tion; Donald J. Cowling, President, Carleton College; Herbert Croly, 
Editor, New Republic; Miss Mary Dreier, Executive Board, National 
Women’s Trade Union League; Edward Mead Earle, Professor, Colum- 
bia University; Sherwood Eddy, National Council of the Y. M. C. A; 
William H. Hale, Attorney, Chicago; Carleton J. H. Hayes, Professor, 
Columbia University; John Haynes Holmes, Pastor, Community 
Church, New York, Editor, Unity; F. Ernest Johnson, Research Secre- 
tary, Federal Council of Churches; Paul Jones, Bishop of Protestant 
Episcopal Church; Mrs. E. F. Langworthy, Secretary, American Com- 
mittee for the Outlawry of War; S. O. Levinson, Chairman, American 
Committee for the Outlawry of War; Halford E. Luccock, Contributing 
Editor, Christian Advocate; Julian W. Mack, Judge, United States 
Circuit Court; Charles Clayton Morrison, editor, Christian Century; 
Reinhold D. Nievuhr, President, Detroit Pastors’ Union; Kirby Page, 
Writer and Lecturer; Raymond Robins, Lecturer; John Nevin Sayre, 
Secretary, Fellowship of Reconciliation; Professor James T. Shotwell, 
Director, Carnegie Endowment for International Peace, and co-author, 
American Plan for Security and Disarmament submitted to the Fifth 
Assembly at Geneva in 1924; Fred B. Smith, Federal Council of 
Churches; Norman Thomas, Director, League for Industrial Democ- 
racy; Wilbur Thomas, American Friends Service Committee. 


196 THE SENATE AND THE COURT 


On June 30th, 1925, a conference was held by the leaders of 
the peace movement in the United States at which a proposal 
was made for the endorsement of the adherence to the Court, 
to be contingent permanently upon the adoption of a statute 
outlawing war. At a further conference, held on June 23rd, 
an agreement was entered into and on July 15th, 1925, announce- 
ment was made that in order to make the Permanent Court of 
International Justice a more effective judicial substitute for 
war in the settlement of international disputes, this conference 
favors: (1) The immediate adherence to the Permanent 
Court of International Justice with the Harding-Hughes- 
Coolidge reservations. (2) Within two years after such ad- 
herence, the signatories to the Court Statute, including the 
United States Government, are to declare by governmental ac- 
tion their endorsement of the outlawry of war and are to call 
an international conference of all civilized nations for the pur- 
pose of making a general treaty. (3) Such treaty shall em- 
body: (a) making war a crime under the law of nations, the 
question of self-defense not being involved: (b) a code of the 
international law of peace based upon the outlawing of war 
and upon equality and justice between nations great and small 
shall be formulated: (c) when war is outlawed the Court of 
Justice shall be granted affirmative jurisdiction over interna- 
tional controversies between sovereign nations as provided for 
and defined in the code and arising under treaties. (4) Should 
signatories to the Court Statute fail within two years after 
the adherence of the United States to make such a declaration 
and to join in a conference for the purpose of making such 
treaty the United States may, in its discretion, withdraw its 
adherence; and further should such adherence fail within five 
years after the adherence of the United States, to make and 
execute a general treaty embodying in substance the aforesaid 
principle, the adherence of the United States shall thereupon 
terminate. 


COMPETENCE WITH RESPECT TO WAR _ 197 


242. The movement in the United States to outlaw war 
is moving forward in three distinct sections: (1) The 
abolition of war and establishment of a court is proposed in 
the Borah Resolution. This section is opposed to affiliation with 
the present Court of Justice as constituted or with the League 
of Nations. (2) The abolition of war through the present 
Court of Justice is proposed in the coalition agreement. (3) 
The abolition of war is proposed by adherents of the League 
and the Court through the sole use of that international 
machinery. Should the United States adhere to the Court with 
the reservations proposed by the coalition agreement, the Ameri- 
can plan to attack the institution of war may be given the 
opportunity for discussion at an early date at an international 
conference called by the signatories to the Court Statute. 


243. The Borah Resolution is the only proposal sub- 
mitted to the Senate which has for its object increasing 
the competence of the Court to prevent war: The Harding- 
Hughes plan does not increase the competence of the Court to 
prevent war, for it stipulates that the United States will not 
accept the optional clause. The United States not being a 
member of the League is not in a position to urge members 
of the League to resort more frequently or preferably to the 
Court or to increase its jurisdiction. On the contrary, adher- 
ence under the Harding-Hughes plan contributes to the per- 
petuation of the present system which concentrates authority 
for the settlement of disputes in the Council or in smaller 
regional groups or commissions and tolerates the sanction of 
war as a method of enforcing judicial decisions. 


CHAPTER XVI 
LAWS TO BE ADMINISTERED BY THE COURT 


244. It must not be possible for the Court to abstain 
from giving a decision: The acceptance of this general rule 
was made necessary by the fact that the Court was granted a 
measure of obligatory jurisdiction and that it could not, within 
the limits of its competence, refuse to consider a matter sub- 
mitted to it. In order to observe the above principle, the Court 
Statute in Article 38 lays down five rules which the Court is 


to apply. 


245. The parties to a convention may establish the rules 
which the Court will apply: Whenever the dispute arises 
under a treaty or convention, whether it is general or particular, 
the Court will apply the rule expressly recognized by the parties. 
These rules, however, are not given the broad application of 
international law, for they must be expressly recognized by the 
contesting states and are law only as between the parties. 


246. International custom is recognized as a source of 
international law: The second paragraph of Article 38 of the 
Statute provides that international customs, as evidence of a 
general practice accepted as law, shall be applied by the Court. 
It is, therefore, the duty of the Court to determine in each 
matter submitted whether there is an international custom, 
established by conventions or practices extending over a suf- 
ficiently long period of time and accepted by nations in general, 
to imply their status as customary law. This rule is in ac- 


198 


LAWS TO BE ADMINISTERED BY COURT _ 1g9 


cordance with the recommendation made by the Advisory Com- 
mittee of Jurists. 


247. General principles of law recognized by civilized na- 
tions shall be applied by the Court: These principles are 
to be applied only in the absence of conventional or customary 
law. This rule apparently includes not only a reference to the 
sources of international law but the future definition of such 
law. This general and somewhat vague provision has given 
rise to the fear that the Court might exercise legislative powers 
in attempts to discover general principles recognized by civilized 
nations. But there was also the danger that the Court might 
have to declare itself incompetent through lack of applicable 
rules, were it to be confined alone to conventional law and 
custom. ‘This rule is also in accordance with the recommenda- 
tion made by the Advisory Committee of Jurists. 


248. Judicial decisions and teachings of the most highly 
qualified publicists of the various nations are established 
as a subsidiary means for the determination of rules of 
law: By judicial decisions is undoubtedly meant those of 
national courts, and, accordingly, the decisions of the United 
States Supreme Court may be taken into consideration. The 
teachings of qualified publicists are, however, of more doubtful 
value; and it may be questioned whether such teachings, even 
when used as the basis of a judgment, will be readily accepted 
as law. This rule is in accordance with the recommendation 
made by the Advisory Committee of Jurists. 


249. Article 59 constitutes an exception to the foregoing 
rule: Its addition to the Statute was recommended by the 
Council; and it provides that the decision of the Court has no 
binding force except between the parties and in respect of that 
particular case. A reference to paragraph 4 of Article 38 


200 THE SENATE AND THE COURT 


makes the foregoing rule subject to the operation of this 
Article. The object of this amendment to the draft Scheme, 
as proposed by the Council, appears to have had in view 
establishing the arbitral principle in the procedure of the Court, 
namely, that the Court may overrule any previous decisions it 
may have made. This rule, however, does not prevent the 
Court from adhering in successive cases to an established prin- 
ciple of law. The effect of Article 59 is that it leaves the Court 
free to disregard its decisions or to observe them as precedents 
in its own discretion and it, therefore, remains to be seen 
whether the principle of following them as precedents will pre- 
vail, Upon this speculation M. Bourgeois in his report to the 
Council throws some light. He observes that it might happen 
that a case appearing important in itself might be submitted 
to the jurisdiction of the Court and that the Court might take 
a decision on this case, laying down certain principles of inter- 
national law, which, if they were applied to other countries, 
would completely modify the principles of the traditional law 
of that country, and which might, therefore, have serious con- 
sequences. It was, therefore, M. Bourgeois’ view that states 
should be given the right of intervention, in which case they 
also would be bound by the decision; but other states should 
not be affected thereby; and to make this certain Article 59 
was adopted.* This view would seem to raise the question 
whether states, not directly affected by a decision in that they 
are neither parties nor do they intervene, may be indirectly af- 
fected by reliance upon a previous decision when their interests 
become involved in other matters before the Court. What- 
ever course may be taken by the Court, it is unquestionably true 
that the insertion of Article 59, with its limitation upon the ap- 
plication of decisions of the Court, marks a reversion to arbitral 
procedure. 


1P. C. of I. J. Doc. Concerning Action of Council, p. 50. 


LAWS TO BE ADMINISTERED BY COURT _ 201 


250. Article 59 is not applicable to advisory opinions: 
The Court has adopted the practice of applying the rules con- 
tained in Article 38 to opinions as well as judgments. It 
would seem from the restriction of the application of Article 59 
to decisions that the exception is not applicable to opinions and 
that they may be relied upon as precedents. An illustration 
occurred in the opinion delivered in the matter of Saint Naoum, 
wherein the Court referred to the opinion delivered in the 
matter of the Polish-Czechoslovakian boundary controversy, in- 
volving much the same kind of question. 


251. The Court may decide a case ex aequo et bono 
upon the request of the parties: This rule was proposed by 
the Third Committee of the First Assembly and constitutes an 
addition to the rules laid down by the Advisory Committee of 
Jurists. This rule, in effect, authorizes the Court to deal with 
a case according to equity and good conscience without respect 
to the rules of law previously established; and duplicates the 
field of the Permanent Court of Arbitration. It also extends 
the field of arbitration ; for although the Court possesses chiefly 
optional jurisdiction and in this respect is an arbitral body, 
nevertheless it apparently may not refuse any case coming 
within its competence nor may it make any conditions for the 
submission, It was apprehended that the Court might be re- 
quested to render a decision in a matter wherein there was no 
positive rule of law or custom to guide the deliberations of the 
Court. According to paragraph 5 of Article 38, the Court may 
then request the parties to permit it to decide the case ex aequo 
et bono, thus relieving it of the embarrassment of having no 
law wherewith to decide the matter. The addition of this rule 
makes it possible for the Court to consider political as well as 
legal questions and widens the scope of the competence of the 
Court; for if the parties agree to submit such matters ex aequo 
et bono, the Court cannot refuse to consider them. 


202 THE SENATE AND THE COURT 


252. The rule of ex aequo et bono does not apply to 
advisory opinions: According to the terms of the Statute it 
is limited to decisions and requires the consent of the parties. 
Properly speaking there are no parties in a proceeding for 
advisory opinions and, therefore, the rule is not applicable. 
Since, however, the Court may prescribe the advisory pro- 
cedure this may be anything which the Court and the parties 
agree upon. 


253. The insufficiency of international law constitutes an 
obstacle to the extension of obligatory jurisdiction: These 
general rules for the Court presuppose that there are in exist- 
ence discernible rules of law and of custom acceptable to 
civilized nations. The Advisory Committee of Jurists rec- 
ognized that these principles and rules had been thrown into 
confusion by the war, and that they were insufficient to sustain 
the measure of obligatory jurisdiction which they proposed to 
give to the Court. The conduct of the war revealed the flimsy 
character of agreements made between individual states as a 
basis of law or order during a crisis. The methods of warfare 
carried on through new inventions and scientific discoveries and 
through the air revealed the inadequacy of existing laws. The 
Conventions adopted at the Hague in 1907 to regulate the con- 
duct of war were seen to be in need of complete revision, if 
they were to be made applicable to the conduct of modern war- 
fare. | 


254. The Peace Treaties disregarded generally accepted 
rules of international law: The Peace Conference at Paris 
was concerned primarily with political and economic terms of 
settlement in which reparations and security were the primary 
considerations. The Conference was not deeply concerned 
whether these arrangements violated existing principles of in- 
ternational law. The result is that new principles of inter- 


LAWS TO BE ADMINISTERED BY COURT 203 


national law have been written into these Treaties, which, if 
upheld by the Court, will tend to establish a new public law. 
Illustrations occur in the provisions which alter the rights of 
sovereign states. For instance, Article 279 of the Treaty of 
Versailles requires Germany to accept, in advance, designations 
of the consular agents of the Allied and Associated Powers to 
exercise their functions in German ports and towns even 
though such agents are persona non grata to the German 
Government. Article 281 provides that if the German Govern- 
ment engages in international trade it shall not be deemed to 
have any rights, privileges or immunities of sovereignty. Sec- 
tions III and IV of Part X permit the confiscation of private 
property, eliminating the distinction in law which has come to 
differentiate non-combatants from the combatants. In the case 
of the S. S. “Wimbledon,” the Court held that where the prin- 
ciples of the law of neutrality appeared to be in conflict with 
the provisions of the Treaty of Versailles, the latter would 
prevail. | 


255. The Commission on the League of Nations made no 
provision in the Covenant for the development and applica- 
tion of international law:? This Commission, charged with 
drafting the Covenant, appears to have given little considera- 
tion to the question of the law which the proposed Court should 
apply, the theory being that its primary duty would be to inter- 
pret and facilitate the terms of the Peace Treaties. When the 


2In a letter to Senator Lodge Mr. Root referred to this omission in 
the following terms: 

International law is not mentioned at all except in the Preamble; no 
method is provided and no purpose is expressed to insist upon obe- 
dience to law, to develop law, to press forward agreement on its 
rules and recognition of its obligations. All questions of right are 
relegated to the investigation and to recommendation of a political 
body to be determined as matters of expediency. (Congressional 
Record, June 23rd, 1919; 66th Congress, First Session.) 


204 THE SENATE AND THE COURT 


draft Covenant was made public on February 14th, 1919, 
attention was called to this omission; but it was not rectified. 
Consequently there is no reference to international law in the 
Covenant other than appears in the Preamble to the effect that 
one of its objects is to promote the firm establishment of the 
understandings of international law as the actual rule of con- 
duct among governments. No further provision is made for 
the realization of this purpose.* On the contrary, the scheme 
for the pacific settlement of disputes, contained in the Covenant, 
makes no reference to law and Article 20 provides that the 
Covenant is to be accepted by members of the League as 
abrogating all obligations or understandings which may be in- 
consistent with its terms; and that states will not enter into 
any new engagements inconsistent with such terms. Treaties 
of arbitration and regional understandings are alone exempted 
under Article 21. 


256. The Hague Conference of 1907 made provision for 
the calling of a Third Hague Conference. Such Conference 
was to have been called in 1915, and in accordance with the 
action taken in 1907, a preparatory committee was engaged 
in collecting the various proposals to be submitted to the Con- 


ference, including the subjects which it was deemed practicable 


to include in international regulations. 


257. For these general reasons, the Advisory Committee 


8 At the time the Covenant appeared, Mr. Root suggested an amend- 
ment making provision for the codification of international law through 
conferences as follows: 

The executive council shall call a general conference of the powers 
to meet not less than two years nor more than five years after the 
signing of this convention for the purpose of reviewing the condition 
of international law and of agreeing upon and stating in authori- 
tative form the principles and rules thereof. 

Thereafter regular conferences for that purpose shall be called and 
held at stated times. 


_——n 


LAWS TO BE ADMINISTERED BY COURT 205 


of Jurists proposed a resolution for the codification of inter- 
national law:* This Committee had in mind: (1) Estab- 


4Text of the Resolution follows: 

The Advisory Committee of Jurists, assembled at The Hague, to 
prepare the constituent Statute of a Permanent Court of International 
Justice: 

Convinced that the extension of the sway of justice and the de- 
velopment of international jurisdictions are urgently required to en- 
sure the security of states and well-being of the nations, recommend 
that: 3 

I, A new inter-State Conference, to carry on the work of the 
two first Conferences at The Hague, should be called as soon as 
possible for the purpose of: 

1. Re-establishing the existing rules of the Law of Nations, more 
especially and in the first place, those affected by the events of the 
recent war: 

2. Formulating and approving the modifications and additions ren- 
dered necessary or advisable by the war, and by the changes in the 
conditions of international life following upon this great struggle: 

3. Reconciling divergent opinions, and bringing about a general 
understanding concerning the rules which have been the subject of 
controversy : 

4. Giving special consideration to those points which are not at the 
present time adequately provided for, and of which a definite settle- 
ment by general agreement is required in the interests of international 
justice. 

II. That the Institute of International Law, the American Insti- 
tute of International Law, the Union Juridique Internationale, the 
International Law Association and the Iberian Institute of Compara- 
tive Law should be invited to adopt any method, or use any system 
of collaboration that they may think fit, with a view to the prepara- 
tion of draft plans to be submitted, first to the various Governments, 
and then to the Conference, for the realization of this work. 

III. That the new Conference should be called the Conference for 
the Advancement of International Law. 

IV. That this Conference should be followed by periodical similar 
Conferences, at intervals sufficiently short to enable the work under- 
taken to be continued, in so far as it may be incomplete, with every 
prospect of success. (Records of the First Assembly, Committees, 


Vol. I, p. 462.) 


206 THE SENATE AND THE COURT 


lishing the existing rules of the law of nations, especially those 
affected by the war. (2) Formulating and approving the mod- 
ifications and additions rendered necessary or advisable by the 
war and by the changes in international life following the war. 
(3) Reconciling divergent opinions and bringing about a general 
understanding concerning the rules which have been the sub- 
ject of controversy. (4) Giving especial attention to the points 
not at the present time especially provided for and of which a 
definite settlement by agreement is required in the interests of 
international justice. As proposed in Resolution I, submitted 
to the Council, the purpose was to restate existing law and to 
propose new laws in the form of general agreements, and to 
deal with the fundamental principle of international law. 

The Committee proposed that this task should be undertaken 
by existing scientific organizations, namely that the Institute 
of International Law, the American Institute of International 
Law, the Union Juridique Internationale, the International 
Law Association and the Iberian Institute of Comparative 
Law should be invited to adopt any method or use any system 
of collaboration with a view to preparing draft plans to submit 
to the various governments. The Committee also proposed 
that the Academy of International Law which had been sus- 
pended during the war, should be set in operation side by side 
with the Permanent Court of International Justice and the 
‘Permanent Court of Arbitration at The Hague. The Com- 
mittee proposed, when these organizations had completed their 
preliminary work, that a new interstate conference should be 
called for the advancement of international law, to be followed 
by periodic conferences at intervals for the continuation and 
completion of the work. 


258. The League of Nations rejected the recommenda- 
tion of the Advisory Committee of Jurists: The opposition 
to this proposal developed in the Assembly, on the ground that 
the Assembly was in reality the body to carry on the work be- 


LAWS TO BE ADMINISTERED BY COURT 207 


gun at The Hague and that the codification of law was solely 
within the field of the League.® In accordance with this belief, 
the Third Committee drafted a resolution inviting the Council 
to take up the matter of securing from authoritative institutions 
suggestions for the best method of co-ordinating and defining 
the rules of international law. This resolution was defeated 
on the ground that the time was not opportune to take up this 
work ; and the Assembly took no action concerning a substitute 
provision.? 


259. A plan for the progressive codification of inter- 
national law was adopted by the Assembly four years 
later: On September 22nd, 1924, largely as the result of a 
movement in the United States, led by Senator Borah, the 


5 The Third Committee considers that the Assembly of the League 
of Nations is, in reality, itself continuing this work [the work of The 
Hague Conferences], and that it would be superfluous to establish an 
additional organization made up in the same way. (Records of the 
First Assembly, Committees, Vol. I, p. 588. 

6 The Assembly of the League of Nations invites the Council to 
address to the most authoritative of the institutions which are devoted 
to the study of international law a request to consider what would be 
the best methods of co-operative work to adopt for the more precise 
definition and more complete co-ordination of the rules of international 
law which are to be applied in the mutual relations of states. (Jbid., 
Committees, Vol. I, p. 589.) 

7 Viscount Cecil expressed the prevailing viewpoint when he addressed 
the Assembly as follows: 

I venture to hope that this recommendation will not be proceeded 
with at present. To my mind, we have not got to a stage yet where 
it is desirable to consider the codification of international law. This 
is really the first step toward codification. It is a request, unless I 
have misunderstood it, to a variety of learned societies to devote 
their attention to the codification of international law. I think that 
a very dangerous project at this stage in the world’s history. I hope 
that we shall not proceed with it at the last moments of this As- 
sembly, or without very much more consideration. (Records of the 
First Assembly, p. 745.) 


208 THE SENATE AND THE COURT 


Assembly passed a resolution in which it requested the Council 
to convene a committee of experts representing the main forms 
of civilization and the principal legal systems of the world.* 
This committee, after consulting with the various scientific 
organizations which have devoted themselves to the study of 
international law, was given the duty: (1) To prepare a pro- 


8 The text of the Resolution follows: 

The Assembly, 

Considering that the experience of five years has demonstrated the 
valuable services which the League of Nations can render towards 
rapidly meeting the legislative needs of international relations, and 
recalling particularly the important conventions already drawn up 
with respect to international conciliation, communications and transit, 
the simplification of customs formalities, the recognition of arbitra- 
tion clauses in commercial contracts, international labour legislation, 
the suppression of the traffic in women and children, the protection 
of minorities, as well as the recent resolution concerning legal assist- 
ance for the poor; 

Desirous of increasing the contribution of the League of Nations to 
the progressive codification of international law: 

Requests the Council, 

To convene a Committee of Experts, not merely possessing indi- 
vidually the required qualifications but also as a body representing 
the main forms of civilization and the principal legal systems of the 
world. This Committee, after eventually consulting the most authori- 
tative organizations which have devoted themselves to the study of 
international law, and without trespassing in any way upon the of- 
ficial initiative which may have been taken by particular states, shall 
have the duty: 

(1) To prepare a provisional list of the subjects of international 
law, the regulation of which by international agreement would seem 
to be most desirable and realisable at the present moment; 

(2) After communication of the list by the Secretariat to the 
Governments of States, whether Members of the League or not, for 
their opinion, to examine the replies received; and 

(3) To report to the Council on the questions which are sufficiently 
ripe and on the procedure which might be followed with a view to 
preparing eventually for conferences for their solution. (Official 


Journal, Special Supplement, No. 21; p. 10.) 


LAWS TO BE ADMINISTERED BY COURT 209 


visional list of the subjects of international law, the regulation 
of which seemed to be most desirable. (2) After communica- 
tion of the list by the Secretariat to the governments of states, 
to examine the replies received; and (3) to report to the 
Council. The Council, at its meeting held in Rome in Decem- 
ber, 1924, decided to appoint a Committee to undertake this 
work.? The Committee selected for consideration a certain pro- 
visional list of subjects. These topics were then divided among 
various subcommittees with a rapporteur in charge of each. 
These committees are authorized to make a preliminary survey 
of the field, and are to report to the main Committee the results 


9 The following were invited to serve on the Committee:—M. Ham- 
marskjold, Governor of Upsala, Chairman; Professor Diena, Professor 
of International Law at the University of Turin, Vice-Chairman; Pro- 
fessor Brierly, Professor of International Law at the University of 
Oxford; M. Fromageot, Legal Adviser to the Ministry for Foreign 
Affairs of the French Republic; Dr. J. Gustavo Guerrero, Minister of 
Salvador in Paris; Dr. Bernard C. J. Loder, former member of the 
Supreme Court of the Netherlands, President of the Permanent Court 
of International Justice; Dr. Vilhena Barbosa de Magalhaes, Profes- 
sor of Law at the University of Lisbon, former Minister for Foreign 
Affairs, for Justice and Education of Portugal; Dr. Adelbert Mastny, 
Minister for Czechoslovakia in London, President of the Czecho- 
slovak Branch of the International Law Association; M. M. Mat- 
suda, Doctor of Law, Minister Plenipotentiary of Japan; M. Simon 
Rundstein, former Legal Adviser to the Ministry for Foreign Affairs 
of Poland; Professor Walter Shiicking, Professor at the University 
of Berlin; Dr. José Leon Suarez, Dean of the Faculty of Political 
Sciences of the University of Buenos Aires; Professor Charles de 
Visscher, Professor of Law at the University of Ghent, Legal Adviser 
to the Ministry for Foreign Affairs of Belgium; Dr. Chung Hui Wang, 
Deputy Judge of the Permanent Court of International Justice (China) ; 
Mr. George W. Wickersham, former Attorney-General of the United 
States, member of the Committee of International Law of the American 
Bar Association, and President of the American Law Institute; a 
Spanish legal adviser (Mr. Botella, of Spain, was subsequently invited) ; 
a legal expert in Moslem law. 


210 THE SENATE AND THE COURT 


of their findings and they are to make recommendations.?° 


260. The co-operation with organizations devoted to the 
study of international law was authorized by an Assembly 
Resolution: In accordance with this Resolution, the Com- 
mittee appointed by the Council has invited organizations, de- 
voted to the development of international law, to co-operate in 
the work. These organizations include those mentioned in the 
recommendations made by the Advisory Committee of Jurists, 
together with certain other organizations.1! In addition, the 
American Society of International Law has appointed a special 
committee to co-operate in the work of preparation.?2 


10 The following are the topics selected and the personnel of the 
sub-committee in charge of each :— 

(1) Nationality: Rapporteur, M. Rundstein; members, M. Magalhaes 
and M. Schiicking. (2) Territorial waters: Rapporteur, M. Schiicking; 
members, M. Magalhaes and Mr. Wickersham. (3) Diplomatic privi- 
leges and immunities: Rapporteur, M. Diena; member, M. Mastny. 
(4) Legal status of ships owned by the state and used for trade: 
Rapporteur, M. Magalhaes; member, Mr. Brierly. (5) Extradition 
and criminal jurisdiction of states with regard to crimes perpetrated 
outside of their territories: Rapporteur, Mr. Brierly; member, M. de 
Visscher. (6) Responsibility of states for damages suffered within 
their territories by foreigners: Rapporteur, M. Guerrero; members, 
M. de Visscher and M. Wang. (7) Procedure of international con- 
ferences and the conclusion and drafting of treaties: Rapporteur, M. 
Mastny; member, M. Rundstein. (8) Suppression of piracy: Rap- 
porteur, M. Matsuda; member, M. Wang. (9) Limitation: Sole mem- 
ber, M. de Visscher. (10) Exploitation of the produce of the sea: 
Sole member, M. Suarez. (11) List of subjects of private international 
law: Rapporteur, M. Brierly; member, M. de Visscher. 

11 The organizations invited include the following: 

The Institute of International Law, the American Institute of 
International Law, the International Law Association, the J/nstitut 
Ibérique de Droit Comparé, the Union Juridique Internationale, the 
American Society of International Law, the International Maritime 
Committee, and the Société de Législation Comparée. 

12 The members of the Committee include the following: 

Jesse S. Reeves, University of Michigan, Chairman; Edwin M. 


LAWS TO BE ADMINISTERED BY COURT 211 


261. The plan adopted by the League does not fulfill the 
requirements set forth by the Advisory Committee of 
Jurists or by the Borah Resolution: While preémpting the 
field of codification, the plan of the League differs from the 
original proposal of the Advisory Committee of Jurists in 
certain essential particulars: (1) The Committee proposed an 
interstate conference, consisting of representatives designated 
by states; the Council has adopted a plan of a specially selected 
Committee in its own discretion. (2) The Committee contem- 
plated (a) re-establishing rules of law affected by the war, 
(b) formulating and approving modifications made necessary 
by the war, (c) reconciling divergent opinions and (d) giving 
attention to points not provided for and wherein a definite 
settlement by agreement is required ; the list of subjects adopted 
by the Committee, appointed by the Council, for preliminary 
study does not fulfill the purpose of the resolution proposed by 
the Jurists. (3) The method proposed by the Advisory Com- 
mittee of Jurists, namely of periodical conferences, has been 
supplanted by a select Committee working under the direction of 
the Council and not with the authority of states. The two pro- 
posals are alike chiefly as to the identity of the legal societies 
which are to be invited to co-operate. The Borah Resolution to 
outlaw war proposed a code of international law based upon 
equality and justice between nations. The essential difference 
between this proposal and the undertaking of the Committee 
appointed by the Council is that the Borah Resolution calls for 
the codification of law on the basis that war is a crime while the 
Committee of the League is proceeding with its work on the 
basis that war is an authorized and legitimate method for 
the adjudication of international controversies. Furthermore, 


Borchard, Yale University; Philip Marshall Brown, Princeton Uni- 
versity; Charles G. Fenwick, Bryn Mawr College; Arthur M. Kuhn, 
the New York Bar; Ellery C. Stowell, The American University, 
and Quincy Wright, University of Chicago. 


212 THE SENATE AND THE COURT 


the Borah Resolution contemplated a code of law to be used as 
a basis for extending the jurisdiction of the Court to unilateral 
summons, whereas the work of the Committee of the League 
bears no immediate relation to such jurisdiction. 


262. The rejection of the proposal of the Advisory Com- 
mittee of Jurists and the failure of the Court Statute to 
provide for the development of international law has given 
rise in the United States to a difference of opinion con- 
cerning the wisdom of immediate adherence of the United 
States to the Court Statute: On the one hand it is con- 
tended that the establishment of judicial institutions need not 
necessarily await the development of international law, for 
there are treaties and a sufficient body of international law and 
a sufficient history of the practice of nations to make judicial 
institutions workable and imperative. On the other hand, it is 
contended that international law, since the war, is in the con- 
dition wherein the efforts of a court to construe it or apply it 
would amount to legislation, and that there are few accepted 
principles which have not suffered through the war; and, there- 
fore, what is required, prior to adherence to the Court, is the 
assurance that the recommendations of the Advisory Committee 
of Jurists will be carried out and that the Court will be pro- 
vided with a body of law to administer whenever disputes arise. 


CHAT DBR a VLE 
INTERNATIONAL SANCTIONS IN RELATION TO THE COURT 


263. The Statute of the Court makes no provision for 
sanctions: The enforcement of the decisions of the Court is 
nowhere provided for; nor are the parties appearing before the 
Court required to accept in good faith its decisions or to 
execute them.? 


264. The general sanctions for the decisions of the Court 
are in the Covenant: The Advisory Committee of Jurists 
made no provision for sanctions in the draft Scheme by reason 


1It should be noted that Article 61 of the Statute provides that the 
Court may require compliance with its decision before it admits pro- 
ceedings in revision of its previous judgment. This may be regarded 
as a species of enforcement of a decision. 

2In an address to the Advisory Committee of Jurists on the open- 
ing of its sessions, M. Bourgeois said: 

Finally, there is a last point of view which we must take in order 
to envisage the necessary relations between the League of Nations 
and the International Court of Justice, and the close solidarity which 
exists and which will always exist to an increasing degree between 
their two actions. 

I approach here briefly the decisive problem of sanctions, 

What would be the efficacy, what would be the reality of a sentence 
of justice, if it did not find in a strong organization of international 
institutions what one calls in a technical term the executory of these 
decisions ? 

The Covenant foresees several degrees of sanction, juridical sanc- 
tion, diplomatic sanction, economic sanction, and as a last resort, and, 
within limits very closely confined, military sanctions. Kie.e 

Speaking in the name of the Council of the League of Na- 
tions we are ready to assume as completely as possible the extent 
of its [Court] competence and the execution of its judgments. P. C. 
of I. J. Pub., Proceedings of the Committee, p. 10. 

213 


214 THE SENATE AND THE COURT 


of the fact that it considered these sanctions to be already pro- 
vided for in the Covenant. When the draft Scheme was dis- 
cussed in the Third Committee of the First Assembly, the 
chairman pointed out that the sanctions provided for in Article 
13 must a fortiori apply to the awards of the Court and that in 
any case Article 16 would be applicabie, since a non-execution 
of the judgment of the Court would constitute a violation of 
the Covenant. A proposal that the Statute specify the na- 
ture of penalties was made by the Argentine Delegation but it 
was rejected by the Third Committee; and another proposal 
made by the representative of Panama, to the effect that the 
Court shall propose what steps should be taken in the event of 
failure to carry out its decrees, was defeated by the plenary 
Assembly.* In respect, therefore, to sanctions, the constitution 
of the League is analogous to other political instruments which 
make provision for a judiciary department in addition to exec- 
utive and legislative bodies. 


265. Sanctions for judicial decisions may be devised by 
the Council: The authority for such implement is vested in 
the Council under Articles 12 and 13 of the Covenant. Under 
Article 12, members of the League agree that should there arise 
between them any dispute likely to lead to rupture they will 
submit the matter to arbitration or inquiry or judicial settle- 
ment; and they agree in no case to resort to war until three 


3M. Politis in his book La Justice Internationale states: 

Article 13 gives the Council the right to intercede for the purpose 
of ensuring respect for a judgment, even when the non-execution of 
such judgment does not imperil peace. * * * This sanction applies 
to all arbitrations between members of the League, and, still more, 
to the decisions of the Permanent Court of International Jus- 
tice. * * * The new form of Article 13 of the Covenant, wherein the 
Permanent Court of International Justice is specifically mentioned, 
leaves not the slightest doubt on this subject. (p. 247.) 


4Records of the First Assembly, p. 456 


INTERNATIONAL SANCTIONS 215 


months after the award or a judicial decision or a report by 
the Council. Article 13 provides that members of the League 
agree to carry out in full good faith any award or judicial de- 
cision that may be rendered and that they will not resort to 
war against any member which complies therewith. But in 
the event of the failure of a member to carry out an award or 
judicial decision, the Council shall propose what steps shall be 
taken to give effect thereto.’ The steps which the Council will 
propose constitute the sanction for the judicial decision. If 
the decision of the Court is accepted and carried out no occa- 
sion arises for devising a form of sanction. If the decision of 
the Court is accepted and not carried out it is the responsibility 
of the Council to devise means of securing its fulfillment, but 
if one party accepts the decision and the other party does 
not then, in the absence of war, it does not appear that the 
Council may take any steps to devise a sanction. And while it 
is mandatory upon the Council to propose steps to give effect to 
a decision of the Court, it does not appear to be obligatory upon 
any party to accept them, nor is the Council granted authority 
to proceed beyond the mere proposal. It may be said, there- 
fore, that the Council may devise sanctions but they are 
inapplicable unless voluntarily accepted by the parties; or in 
the event of war made by one party upon a party accepting 
the decision. In the event that both parties reject the de- 
cision, as they may do, the Council has no power to devise sanc- 
tions. 


266. The general rule under Article 13 may be given a 
wide application through existing treaties: For a full ap- 


5 The Covenant originally provided for arbitration and for inquiry by 
the Council. Amendments ratified in 1924 make effective the inclu- 
sion of “judicial settlements” and “judicial decisions” in Articles 12 
and 13 of the Covenant. The effect of these amendments is to bring 
judicial decisions or settlements within the sanctions provided for by 
the Covenant. 


216 THE SENATE AND THE COURT 


preciation of this fact it is necessary to review the jurisdiction 
conferred upon the Court. Under the clauses of the Treaties 
of Peace relating to transit (Articles 336, 337, 376 of the Treaty 
of Versailles and corresponding articles of the other Treaties), 
the League is to provide the manner of settlement of disputes 
with respect to transit and communications. The enforcement 
of such decisions falls, therefore, under Article 13 of the Cove- 
nant. Under Mandates, the annual reports, submitted by man- 
datories to the Permanent Mandates Commission, which, in 
turn, forwards such reports, with its observations to the Coun- 
cil, ensure the enforcement of a decision of the Court. If, for 
example, Great Britain had refused to comply with the decision 
of the Court, concerning the Mavrommatis Palestine Conces- 
sions, the report on the Palestine Mandate would have con- 
tained this refusal, and the Permanent Mandates Commission 
would have brought to the attention of the Council that the 
action of Great Britain constituted a failure to carry out an 
award, under paragraph 4 of Article 13 of the Covenant. 
Similarly, under Minority Treaties, the enforcement lies with 
the League since it guarantees the protection of minorities. 
Disputes under political conventions, treaties of conciliation or 
commercial treaties between members of the League, fall under 
paragraph 2 of Article 13 of the Covenant; and their enforce- 
ment will arise, therefore, from the Covenant, quite immaterial 
of whether the parties have elected to appear before the Per- 
manent Court or some other tribunal. 


267. Judgments of the Court may be enforced under the 
Covenant by economic and military sanctions: These sanc- 
tions are specified in Article 16 of the Covenant and are of two 
kinds: (1) Economic sanctions, under paragraph 1, consist- 
ing of the severance of trade and financial relations between 
members of the League and the state or states not executing 
the judgment which failure constitutes the state a covenant- 


INTERNATIONAL SANCTIONS 217 


breaking state; and (2) military sanctions comprising the use 
of military, naval and air forces to be contributed by members 
of the League on recommendation of the Council.*° These 
sanctions are applicable only when a state resorts to war in 
violation of Articles 12, 13 or 15 of the Covenant. 


268. These economic and military sanctions are appli- 
cable by members of the League: Whenever the Court ren- 
ders a decision involving members of the League which have 
accepted the obligations of Articles 12, 13 or 15, and such a 


6 Text of Article 16 is as follows: 

Should any member of the League resort to war in disregard of 
its covenants under Articles 12, 13 or 15, it shall ipso facto be 
deemed to have committed an act of war against all other members 
of the League, which hereby undertake immediately to subject it to 
the severance of all trade or financial relations, the prohibition of 
all intercourse between their nationals and the nationals of the 
Covenant-breaking state, and the prevention of all financial, com- 
mercial or personal intercourse between the nationals of the Covenant- 
breaking state and the nationals of any other state, whether a member 
of the League or not. 

It shall be the duty of the Council in such case to recommend to 
the several governments concerned what effective military, naval or 
air force the members of the League shall severally contribute to the 
armed forces to be used to protect the covenants of the League. 

The members of the League agree, further, that they will mutually 
support one another in the financial and economic measures which 
are taken under this article, in order to minimise the loss and incon- 
venience resulting from the above measures, and that they will 
mutually support one another in resisting any special measures aimed 
at one of their number by the Covenant-breaking state, and that they 
will take the necessary steps to afford passage through their terri- 
tory to the forces of any of the members of the League which are 
co-operating to protect the covenants of the League. 

Any member of the League which has violated any covenant of 
the League may be declared to be no longer a member of the League 
by a vote of the Council concurred in by the Representatives of all 
the other members of the League represented thereon, 


218 THE SENATE AND THE COURT 


member refuses to execute its terms, and resorts to war against 
a party accepting it, or resorts to war against a party accepting 
a recommendation of the Council containing the substance of 
such judicial decision, then the members of the League are 
expected: (1) To undertake individually, and without recom- 
mendation by the Council, to sever trade and financial relations 
with the Covenant-breaking state, and to prohibit intercourse 
between nationals. These constitute the economic sanctions. 
Each state may apply them in the degree and manner it sees 
fit.’ (2) To contribute the armed forces necessary to carry 
out a recommendation made by the Council. The manner of 
their contribution and the direction of the forces are not de- 
fined. (3) To permit armed forces to pass through their ter- 
ritory in the enforcement of sanctions. 


269. Under what conditions, by whom and when general 
economic and military sanctions will become applicable has 
not been determined: Efforts to interpret and apply these 
sanctions have been made from the beginning: (1) The In- 
ternational Blockade Committee undertook to state the rule 
early in the history of the League by framing replies to four 
questions for the purpose of interpreting Article 16.2 In an- 
swer to the first question, namely, under what conditions should 
sanctions be applied, the Committee laid down the principle that 


7 An amendment to Article 16, adopted by the Fifth Assembly, but 
not yet having received sufficient ratifications to be in force, provides 
that the intercourse will first be prohibited between persons residing 
in the territory of the Covenant-breaking state and persons residing in 
the territory of other states and the prohibition will be extended to 
nationals only if deemed expedient. Other amendments adopted by the 
Second Assembly and not yet in force provide that the Council 
decides whether a breach of the Covenant has taken place, sets the date 
for the application of economic pressure, and permits postponement in 
certain cases. 

8 Records of the Second Assembly, pp. 450-58. 


INTERNATIONAL SANCTIONS 219 


at the outset war should be avoided and peace should be restored 
by economic pressure; but that Article 16 (paragraph 1) en- 
titles member states to declare themselves at war with a 
Covenant-breaking state. To the second question, namely, 
whose duty is it to decide that the necessity for sanctions has 
arisen, the Committee replied that it was the duty of each mem- 
ber to decide for itself either with or without a recommendation 
from the Council. To the third question, namely, at what 
moment and by whom shall sanctions be applied, the Committee 
replied that all states should be treated alike but it might be 
necessary to recommend the execution of special measures to 
certain states. In answer to the question how should sanctions 
be applied, the Committee recommended, and the Assembly 
passed, nine resolutions dealing with diplomatic relations, 
economic severance, correspondence, communications and other 
practical matters. The nature of the answers to these questions 
indicates the differences of opinion underlying the application 
of sanctions. While it is true that each state is free to apply 
sanctions and that a recommendation by the Council would en- 
courage states to apply them, it is equally true that no state ap- 
pears to be willing alone to incur war to enforce a judgment of 
the Court; and collective agreements wherein a few states 
guarantee the execution of an agreement are superseding in- 
dividual action and general sanctions. (2) The Treaty of 
Mutual Assistance, adopted by the Fourth Assembly in 1923, 
but not ratified by a sufficient number of states, undertook to 
grant to the Council additional authority to determine the fact 
of aggression and to apply sanctions, going so far as to au- 
thorize the Council to create a higher command to take charge 
of military operations. (3) The Protocol for the Pacific 
Settlement of International disputes, adopted by the Fifth As- 
sembly, in 1924, but not ratified by a sufficient number of 
states, constituted any state resorting to war without resorting 
to arbitration or judicial settlement, an aggressor and made 


220 THE SENATE AND THE COURT 


the application of sanctions automatic without determining the 
fact of aggression or the merits of the case. These two instru- 
ments had for their object strengthening the provisions of Ar- 
ticle 16 with respect to sanctions, to be applied generally by all 
members of the League or by such members as the Council 
may designate. 


270. The essential principle of general sanctions under 
the Covenant is that the enforcement of a judicial decision 
is conditioned upon its being also a violation of the 
Covenant: A member of the League refusing to execute a 
judgment of the Court, or the terms of its opinion embodied in 
a recommendation of the Council, incurs no risk of having a 
sanction applied unless its refusal to execute the decision of the 
Court amounts to a violation of its undertakings under the 
Covenant. The rule is, therefore, that a decision of the Court 
possesses sanctions only when its non-enforcement constitutes 
also a violation of the Covenant, unless provisions are made 
elsewhere under Peace Treaties when these will be in addition 
to sanctions under the Covenant. 


271. Economic and military sanctions are applicable by 
members of the League under the Peace Treaties: When- 
ever a matter is referred to the Court for a judgment, sanctions 
attach in the manner specified in a treaty, and in the discretion 
of the chief executors of these treaties, namely, the Allied 
Powers: For members of the League, an illustration is af- 
forded by the labor section of the Treaty of Versailles wherein 
the Court may indicate economic sanctions to be applied by 
states under the Treaty. For non-member states, an illustra- 
tion is afforded by Article 386 of the Treaty of Versailles 
whereunder the matter of the S. S. “Wimbledon” arose. In the 
event that Germany had not observed the decision of the Court, 
the Allied Powers, acting as the Conference of Ambassadors or 


INTERNATIONAL SANCTIONS 221 


otherwise, would have been in a position to apply economic or 
military sanctions of their own choosing. Had the question in- 
volving the payment of reparations, which led France to occupy 
the Ruhr, been referred to the Court, the sanction applicable 
would have been that prescribed in the Treaty. Had the Alba- 
nian and Serb-Croat-Slovene States not accepted the decision of 
the Conference upheld by the opinion of the Court in the matter 
of Saint Naoum (and later exchanged territories pacifically ) 
the sanctions would have vested in the Allied Powers; and the 
same would have been the case in the matter of Jaworzina. 


272. Regional agreements for the prevention of war af- 
ford sanctions enforceable by the guarantors of the agree- 
ments: These agreements are of two general kinds: (1) 
Where states enter into defensive alliances, enforceable out- 
side the terms of the Covenant ; such agreements contain no ref- 
erence to the provisions of the Covenant neither as regards a 
preliminary effort for pacific settlement of disputes nor as re- 
gards sanctions. The signatory states, having guaranteed to 
protect each other’s interests, or to apply joint protective meas- 
ures, or to come to the assistance of the party attacked, appar- 
ently may apply sanctions independently of the League.° Ex- 
amples of such types of alliances are the Franco-Belgian, 
Franco-Polish, Franco-Czech, Roumano-Polish, Italo-Jugoslav 
and Esthonian-Latvian Treaties. (2) Where states enter into 
agreements guaranteeing boundaries, enforceable by military 
sanctions to be applied by regional states within certain limita- 
tions imposed by the terms of the Covenant; such is the 
Locarno Treaty of Mutual Guarantee, whereunder Great 
Britain and Italy guarantee the boundary between Germany 
and France and between Germany and Belgium. Provision is 

®An instance occurred on the occasion of the attempted return of 
ex-King Charles IV to Hungary. The Little Entente states in accord- 


ance with their treaty, threatened war, which was only prevented by 
the withdrawal of ex-King Charles. 


230 FEN THE SENATE AND THE COURT 


made for pacific settlement of disputes, in accordance with the 
Covenant, and while the guarantor states apply sanctions in 
case of a violation of the Treaty, and the guarantor states 
themselves decide when such flagrant violation has taken place, 
the matter may also be brought before the Council, and the 
parties agree to act in accordance with recommendations issued 
by that body “provided that they are concurred in by all the 
members other than the representatives of the parties which 
have engaged in hostilities.” 1° Under this new type of treaty, 
therefore, the guarantor states may use the rights conferred 
specifically on the Council by Article 16 of the Covenant, of 
deciding when military sanctions shall be applied; but having 
made this decision, they agree to act in accordance with the 
recommendations of the Council. It is, however, specifically 
stated that the Treaty “shall not be interpreted as restricting 
the duty of the League to take whatever action may be deemed 
wise and effectual to safeguard the peace of the world” 14 and 
it remains to be seen whether the powers of the Council take 
precedence over the powers of the parties. 


273. Economic and military sanctions are applicable to 
non-members of the League only to the extent of their ac- 
ceptance of the instruments containing such sanctions: 
Under this rule, sanctions contained in treaties are applicable 
by the High Contracting Parties in the manner prescribed ; and 
no state would be liable to the sanctions provided for in the 
Covenant until it became a member of the League. While it 
is true that Article 17 provides a contrary rule with reference 
to action to be taken by the Council, nevertheless the Court 
has held that it will render no opinion and presumably no judg- 
ment, under an instrument not signed by the parties.12 Conse- 

10 Guarantee Treaty of Locarno; Article IV. 

11 Jbid, Article VII. 


12 For summary of opinion in the Eastern Carelian question and that 
of the Oecumenical Patriarch, see Annex I. 


INTERNATIONAL SANCTIONS 2275 


quently, no question of sanctions will arise. If, however, a 
State desiring to use the Court, and required to make a Dec- 
laration, as prescribed by the Council, makes such Declaration, 
then it agrees to carry out the decision of the Court and not to 
resort to war against a party accepting the decision. This, in 
effect, is accepting the provisions of Article 13 of the Covenant 
and it is a permissible inference that in so doing a non-member 
state would bring itself within the sanctions prescribed in the 
Covenant for both member and non-member states. The pro- 
vision relating to a Declaration is, however, subject to the terms 
of Article 35 of the Statute relating to the provisions of 
treaties."* 


274. Economic sanctions are applicable by members of 
the International Labor Organization under the Peace 
Treaties: Under the labor sections of the Treaty of 
Versailles, the Court will specify the economic measures to be 
applied to a state not complying with its decision and member 
states may apply the measures prescribed and their application 
shall cease only upon a decision of the Court favoring their dis- 
continuance. The sanctions are limited to economic measures 
and it is optional with members to apply these sanctions. 


275. Economic and military sanctions are applicable to 
advisory opinions under certain conditions: An advisory 
opinion becomes enforceable only by reason of its acceptance 
by the agency requesting it through the Council. For this 
reason, no sanction attaches to the opinion per se. In the case 
of the Council, if a report is unanimously agreed to by the 
members, other than the representatives of the parties, the 
members agree that they will not resort to war with any party 


13 Jn accordance with such provisions, Germany was exempted from 
making a Declaration, in the case of German interests in Polish Upper 
Silesia, see Annex I. 


224 THE SENATE AND THE COURT 


which complies with the recommendation contained in the re- 
port. When the opinion of the Court becomes the substance 
of such a report and recommendation, the opinion then ac- 
quires the same force as any other recommendation by the 
Council and a state resorting to war is subject to the sanctions 
contained in Article 16 in the same manner as though it were 
a judicial decision. In the case of the Conference of Ambas- 
sadors, when it requests an opinion through the Council, a 
sanction will attach to the decision of the-Conference embody- 
ing the substance of that opinion, to be executed by the forces 
of the Principal Allied Powers. Whenever an international 
organization such as a Labor Conference or a Mixed Com- 
mission requests an interpretation of its competence through an 
advisory opinion the enforcement will rest with these bodies. 


276. The lack of sequence between the definite legal 
character of the decisions of the Court and the indefinite 
political character of sanctions detracts from the judicial 
character of the entire proceeding: Whereas the decision of 
the Court is definite and based upon principles of law and is 
taken according to a fixed procedure, there is no corresponding 
certainty concerning its enforcement. Nor is there any as- 
surance that the sanction recommended by the Council will be 
proportionate to the offense complained of or appropriate to 
the decision; or that political considerations will not influence 
its execution to the exclusion of a just remedy. This lack of 
sequence is due to the fact that the Court is not authorized, 
except under the labor clauses, to indicate measures which it 
believes to be appropriate to the execution of its decision. 
In this respect the Court is an arbitral not a judicial body, for 
members of the League apply the prescribed sanctions. 


277. The United States is not amenable to the sanctions 
contained in the Covenant: By reason of being mentioned 


INTERNATIONAL SANCTIONS 225 


in the Annex to the Covenant, the United States, in order to 
use the Court, need not make the Declaration required of non- 
member states; and not being a member of the League it in- 
curs no obligations under the Covenant. The United States is 
not, therefore, formally bound to carry out the decisions of 
the Court in cases where it is a party, nor to refrain from 
going to war, nor to submit to any steps taken by the Council 
to enforce a decision, even though it involves a member of the 
League. Were the United States invited under Article 17 to 
accept the terms of membership in the League for the purpose 
of settling a dispute and to decline, the Court, following the 
opinion in the Eastern Carelian matter, would doubtless hold 
that it had no jurisdiction in view of the United States not 
having accepted the Covenant. There can be no doubt, how- 
ever, that the United States in affiliating with the Court will 
be accepting, in principle, a tribunal which has economic and 
military sanctions which can be brought into execution by the 
Council of the League; or by the Conference of Ambassadors ; 
or by other groups whenever members of these bodies are 
agreed to enforce a decision of the Court. 


278. No proposal before the Senate contains any reserva- 
tion concerning sanctions: Adherence under the Harding- 
Hughes plan would, therefore, recognize the existing system 
wherein such sanctions as exist for the decisions of the Court 
are vested in the members of the League of Nations acting 
under the Covenant; and wherein they are applicable on the 
theory that failure to execute a decision of the Court constitutes 
a violation of the Covenant. And, notwithstanding the fact 
that sanctions, thus vested in the League are not now applicable 
to the United States, it would seem desirable that the United 
States should make clear its policy not to recognize international 
sanctions of force as applicable to decisions of a Court with 
which it becomes affiliated. 


CHAPTER XVIII 
PROPOSALS SUBMITTED TO THE SENATE 


279. When the Senate meets on December 7th, 1925, 
it will not have before it any proposal without reservations 
for affiliation with the Court: The traditional attitude taken 
by Mr. Wilson and the Democratic party in favor of adherence 
without reservations has been abandoned ; 1 and the Democratic 
minority in the Senate, led by Senator Swanson, has sub- 
mitted the proposals of the Republican Administration, namely 
the Harding-Hughes plan.2 The Resolution introduced by 
Senator Swanson in 1923, and re-introduced in 1924, appears 
not to be in accordance with the Democratic National platform 
of 1924.° Senator Willis, in the closing session of the Sixty- 
eighth Congress, apparently for purposes of political strategy, 
introduced a resolution similar to the Democratic Resolution. 


1 This attitude was defined in a letter from Mr. Wilson to Repre- 
sentative Rouse, under date of April 14th, 1920, wherein he stated: 

In reply to your letter of March 2oth, let me say that I approve 
not of the conditional but of the unconditional adhesion of the United 
States to the World Court set up under the auspices of the League of 
Nations, though I think it would be more consistent with the fame 
of the United States for candor and courage to become a member of 
the League of Nations and share with other members the full re- 
sponsibilities which its Covenant involves. 

2 For text of Senator Swanson’s Resolution, see Annex V. 
8 That part of the National Democratic platform relating to the Court, 
follows: 

It is of supreme importance to civilization and to mankind that 

226 


PROPOSALS SUBMITTED TO THE SENATE 227 


280. The Harding-Hughes plan favors affiliation with 
the Court on five conditions: The proposal for affiliation is 
contained in a recommendation made by the Secretary of State 
to President Harding under date of February 13th, 1923, and 
transmitted to the Senate under date of February 24th, 1923.4 
The message was referred to the Committee on Foreign Re- 
lations which has not reported favorably upon the recom- 


America be placed and kept on the right side of the greatest moral 
question of all time, and therefore the Democratic party renews its 
declaration of confidence in the ideal of world peace, the League of 
Nations and the World Court of Justice as together constituting the 
supreme effort of the statesmanship and religious conviction of our 
time to organize the world for peace. Further, the Democratic party 
declared that it will be the purpose of the next administration to do 
all in its power to secure for our country that moral leadership in 
the family of nations, which, in the providence of God, has been so 
clearly marked out for it. 

There is no substitute for the League of Nations as an agency 
working for peace; therefore we believe that, in the interest of 
permanent peace and in the lifting of the great burdens of war from 
the backs of the people and in order to establish a permanent foreign 
policy on these supreme questions, not subject to change with change 
of party administrations, it is desirable, wise and necessary to lift 
this question out of party politics; and to that end to take the sense 
of the American people at a referendum election, advisory to the 
government, to be held officially under act of Congress, free from 
all other questions and candidacies, after ample time for full con- 
sideration and discussion throughout the country upon the question, 
in substance, as follows: 

Shall the United States become a member of the League of Nations 
upon such reservations or amendments to the Covenant of the 
League as the President and the Senate of the United States may 
agree upon? 

Immediately upon an affirmative vote we will carry out such 
mandate. 
4For text of memorandum submitted by Mr. Hughes to President 

Harding, see Annex IV. 


228 THE SENATE AND THE COURT 
mendations contained therein. The proposal is as follows: 


Accordingly I beg leave to recommend that, if this course meets 
with your approval, you request the Senate to take suitable action 
advising and consenting to the adhesion on the part of the United 
States to the protocol of December 16th, 1920, accepting the adjoined 
Statute of the Permanent Court of International Justice, but not 
the optional clause for compulsory jurisdiction; provided, however, 
that such adhesion shall be upon the following conditions and under- 
standings to be made a part of the instrument of adhesion: 

I. That such adhesion shall not be taken to involve any legal 
relation on the part of the United States to the League of Nations 
or the assumption of any obligations by the United States under the 
Covenant of the League of Nations constituting Part I of the Treaty 
of Versailles. 

II. That the United States shall be permitted to participate 
through representatives designated for the purpose and upon an 
equality with the other states’ members, respectively, of the Council 
and Assembly of the League of Nations in any and all proceedings 
of either the Council or the Assembly for the election of judges or 
deputy judges of the Permanent Court of International Justice, or 
for the filling of vacancies. 

III. That the United States will pay a fair share of the expenses 
of the Court as determined and appropriated from time to time by 
_the Congress of the United States. 

IV. That the Statute for the Permanent Court of International 
Justice adjoined to the protocol shall not be amended without the 
consent of the United States. 


The non-acceptance of the optional clause relating to obliga- 
tory jurisdiction, as noted above, is declared to be the policy 
of the United States. 


281. Mr. Harding’s supplemental proposals are but 
partially before the Senate:° These supplemental proposals 
were made by President Harding at St. Louis, in an address 


5 That part of the speech relating to the Court follows: 
Granting the noteworthy excellence, of which I, for one, am fully 


PROPOSALS SUBMITTED TO THE SENATE 229 


made on June 2Ist, 1923. In this address President Harding 
suggested a method of electing judges, a method of contributing 
to expenses, and a change in the advisory procedure of the 
Court. His first suggestion is embodied in the Lodge and 
Pepper Resolutions separating the Court from the League; his 
two last suggestions remain to be incorporated in a Republican 
plan. 


282. President Coolidge has accepted the Harding- 
Hughes plan, without the later recommendations made by 
President Harding: The death of Mr. Harding and the 
accession of Mr. Coolidge to the Presidency made it necessary 
to restate the Republican Administration policy. In his first 
address to Congress on December 6th, 1923, Mr. Coolidge 


convinced, of the Court as now constituted, why not proceed in the 
belief that it may be made self-perpetuating? This could be done 
in one of two ways: (1) by empowering the Court itself to fill 
any vacancy arising from the death of a member or retirement for 
whatever cause without interposition from any other body; or (2) 
by continuing the existing authority of the Permanent Court of 
Arbitration to nominate and by transferring the power to elect from 
the Council and Assembly of the League to the remaining members 
of the Court of Justice. 

The fixing of compensation of the judges, supervision of ex- 
penditures, the apportionment of contributions, etc., could also be 
transferred from the League to either the Court of Arbitration or a 
commission designated by the member nations. Thus, incidentally, 
would be averted the admitted unfairness of the present system, 
which imposes a tax upon the members of the League who are not 
subscribers to the Court. 

The exclusive privilege now held by the League to seek advisory 
legal guidance from the Court might either be abolished, or, more 
wisely, perhaps, be extended to any member or group of member 
nations. Thus all would be served alike, subject as now to deter- 
mination by the Court itself of the kind of questions upon which it 
would render judgments. 


230 THE SENATE AND THE COURT 


formally announced his adoption of the Harding-Hughes plan.® 
In an address on May 30th, 1924, Mr. Coolidge reiterated his 
policy; * and the Republican platform supported this policy.® 


6 Text of that part of the address relating to the Court follows: 

Our foreign policy has always been guided by two principles. The 
one is the avoidance of permanent political alliances which would 
sacrifice our proper independence. The other is the peaceful settle- 
ment of controversies between nations. By example and by treaty 
we have advocated arbitration. For nearly twenty-five years we 
have been a member of The Hague Tribunal, and have long sought 
the creation of a permanent World Court of Justice. I am in full 
accord with both of these policies. I favor the establishment of 
such a court intended to include the whole world. That is, and has 
long been, an American policy. 

Pending before the Senate is a proposal that this Government give 
its support to the Permanent Court of International Justice, which 
is a new and somewhat different plan. This is not a partisan ques- 
tion. It should not assume an artificial importance. The Court is 
merely a convenient instrument of adjustment to which we could go, 
but to which we could not be brought. It should be discussed with 
entire candor, not by a political but by a judicial method, without 
pressure and without prejudice. Partisanship has no place in our 
foreign relations. 

As I wish to see a court established, and as the proposal presents 
the only practical plan on which many nations have ever agreed, 
though it may not meet every desire, I therefore commend it to the 
favorable consideration of the Senate, with the proposed reservations 
clearly indicating our refusal to adhere to the League of Nations. 

7 Text of statement relating to the Court, follows: 

More than a year ago President Harding proposed that the Senate 
should authorize our adherence to the protocol of the Permanent 
Court of International Justice, with certain conditions. His sugges- 
tion has already had my approval. On that I stand. 

I should not oppose other reservations, but any material changes 
which would not probably receive the consent of the many other 
nations would be impracticable. We cannot take a step in advance 
of this kind without assuming certain obligations. Here again if we 
receive anything we must surrender something. 

8 Text of the plank in the Republican platform of 1924 follows: 
The Republican Party reaffirms its stand for agreement among 


PROPOSALS SUBMITTED TO THE SENATE 231 


283. A separatist proposal was submitted to the Senate 
by Mr. Lodge, then chairman of the Committee on Foreign 
Relations: This Resolution was introduced on May gth, 1924 
by Mr. Lodge.® It contained sixty-seven articles completely 
divorcing the Court from the League, and was accompanied by 
an explanation prepared by the Hon. Chandler P. Anderson, 
ex-Counsel to the State Department. It provided (1) for the 
election of judges through an Electoral Commission, consisting 
of a general committee and a special committee composed of 
representatives from Great Britain, France, Italy, Japan and 
the United States; (2) for the reduction of the votes of the 
British Empire from seven to one; (3) for denunciation of 
the Court Statute; (4) for the limitation of advisory opinions; 
(5) for the recognition by the Court of the authority of the 
laws of the United States within its own jurisdiction as applied 
to foreigners and foreign-owned property; and (6) for special 
agreements to be concluded by the United States and the other 
parties in interest, before a case is submitted to the Court, such 
agreements to have the approval of the Senate or the President. 


284. A Republican majority proposal was submitted to 
the Senate by Mr. Pepper: The Resolution was introduced 


the nations to prevent war and preserve peace. As an important 
step in this direction we endorse the Permanent Court of Inter- 
national Justice and favor the adherence of the United States to 
this tribunal as recommended by President Coolidge. This Govern- 
ment has definitely refused membership in the League of Nations 
and to assume any obligations under the Covenant of the League. 
On this we stand. 

While we are unwilling to enter into political commitments which 
would involve us in the conflict of European policies it should be 
the purpose and high privilege of the United States to continue to 
cooperate with other nations in humanitarian efforts in accordance 
with our cherished traditions. 

9 Senate Resolution No. 122, 68th Congress, First Session; for text 
of Resolution, see Annex VI. 


232 THE SENATE AND THE COURT 


on May 26th, 1924, and had for its object the separation of the 
Court and the League by the elimination from the Statute of 
all references to the Covenant or to the League.t° This Res- 
olution was referred to the Committee on Foreign Relations and 
was reported by a majority of the Committee, together with a 
report. It is now before the Senate and provides, in general, as 
follows: (1) Amendments to the Protocol of signature, open- 
ing the Court to all states and authorizing the deposit of rati- 
fications not with the Secretary-General of the League, but with 
the Registrar of the Court. (2) A new method of electing 
judges directly by the signatories, and for the omission from 
the Court Statute of all references to the League of Nations. 
The report accompanying this Resolution contained the follow- 
ing data: (1) The theory of a World Court and of a general 
international law; (2) a brief history of the Court of Justice; 
(3) the plan of the Court and the Protocol; (4) the existing 
relation between the League and the Court; (5) amendments 
and reservations ; (6) the Swanson Resolution and the Commit- 
tee Resolution; (7) the vote of the British Empire in the 
Assembly. (8) the Monroe Doctrine; and (9) the way to 
peace. 


285. The Senate will consider the subject of adherence to 
the Court Statute on December 17th, 1925: There is a dif- 
ference of opinion concerning what will take place when this dis- 
cussion opens in the Senate. It appears, however, that since this 
session of Congress is the beginning of the Sixty-ninth Con- 
gress, the only matter before the Senate will be the unfinished 
business of the President’s message of February 24th, 1923. If 
this is the correct interpretation, that message may be called up, 
and any one of the proposals now before the Senate, including 


10 Senate Resolution No. 234, 68th Congress, First Session; for text 
of Resolution, see Annex VII. 


PROPOSALS SUBMITTED TO THE SENATE 233 


the Lenroot, Swanson, Willis, King, Lodge and Pepper Resolu- 
tions may be debated. If, however, during the interim between 
the 7th of December when Congress meets and the 17th when 
the debate is taken up, other resolutions are introduced and re- 
ferred to the Committee on Foreign Relations and that Com- 
mittee reports out a measure, then it appears such resolution will 
be the subject of debate. In view of the difference of opinion 
over the procedure, it is impossible to predict what the precise 
procedure will be or whether there will be other resolutions. 


286. The proposals to separate the Court from the 
League are not acceptable to members of the League on 
grounds of policy: The main reasons follow: (1) The 
League of Nations System comprises three departments: legis- 
lative (the Assembly) ; executive (the Council); and judicial 
(the Court). There is no expressed desire on the part of 
members of the Council, or members of the League to change 
the system by dismembering the organization through detaching 
its Court. On the contrary the members of the League appear 
to be satisfied with the present arrangement. (2) The great 
Powers have constructed the Court for the purpose of facili- 
tating the application of the Peace Treaties and for this pur- 
pose have granted to the Court a measure of obligatory juris- 
diction which necessitates that the Council direct the general 
policy of the Court. (3) The experiment undertaken by the 
Versailles Treaty and supplemental treaties is a European net- 
work of schemes for the settlement of disputes in which 
processes of conciliation, inquiry, arbitration, judicial advice 
and judicial decision are inextricably combined, with military 
and economic sanctions applicable in varying degrees and terms. 
To undertake a separation of the Court would be to throw into 
confusion a variety of agreements which recognize the solidarity 
of the Council and the Court for their execution. It is not a 


234 THE SENATE AND THE COURT 


proposal which European states will regard with friendliness. 
(4) The system of national judges prevails by reason of their 
election as representatives of the League. There is not the 
slightest possibility that the Powers which dominate the Coun- 
cil will consent to any plan whereby they incur the risk of not 
having a permanent national on the Court. The interposition 
of the League makes it possible to elect nationals as representa- 
tives of the League without incurring such risk. (5) The 
affliation of the United States is regarded in Europe as of 
moral rather than material value, as contributing to the wide- 
spread acceptance of the Peace Treaties through their inter- 
pretation and application; if the price of such affiliation neces- 
sitates the imposition of United States policies upon the Court, 
together with amendments to the Covenant and Statute, the 
burden of adjustment is on the League, which there is no reason 
to assume that it will undertake, unless affiliation with the 
Court is to be regarded as preliminary entrance into the League. 


287. The proposal to separate the Court from the League 
is impractical on technical grounds: It has been as- 
sumed that the omission of the references to the Covenant 
and to the League and Council in the text of the Statute would 
be sufficient. Such is not the fact, for the separation of the 
Court from the League requires that affirmative provision be 
made for certain functions now performed by the League 
and for the proper functioning of the Court: (1) Provision 
should be made for withdrawals of signatory states, now 
possible only through the League. (2) Provisions should be 
made for revision of the Statute, now vested in the League. 
(3) Provisions should be made in the Statute for the sanction 
of good faith. (4) Provision should be made whereby the 
League could not alter the meaning of the Statute nor impose 
non-judicial duties upon the Court through conventions. (5) 
Provision should be made for the presence of a national of 


PROPOSALS SUBMITTED TO THE SENATE 235 


every party when one party has a national or for the withdrawal 
of all nationals of the parties in advisory proceedings if they 
are retained in any form. (6) Intervention by groups of 
states whether it be the Council or the Conference of Ambas- 
sadors or any other body between the parties and the Court 
should be made impossible if political influence is to be 
eliminated from adjudications. (7) The accessibility of the 
Court by states only for purposes of adjudicating disputes 
should be precisely stipulated in the Statute. (8) Some 
method of raising and apportioning funds for the expenses of 
the Court should be indicated. In other words, it is not suffi- 
cient to undertake to detach the Court from the League: 
there must be also an affirmative proposal supplying the needs 
created by such separation. 


288. The proposal to affiliate with the Court under the 
Harding-Hughes conditions does not adequately protect 
the interests of the United States: These proposals were 
made three years ago before the policy of the League and 
the Court had been fixed. In the light of the policies adopted 
since the recommendations were made, the pending proposals 
are inadequate and should be revised in accordance with the 
known policy of the League and the Court, which policies were 
not known at the time the recommendations were made to the 
Senate. The policies to be taken into consideration include the 
following: (1) In 1923, when the proposal was submitted 
to the Senate, it was not known that the Court would be- 
come an almost exclusively advisory body to the Council. 
But since February, 1923, the Court has had submitted to it 
twelve matters, of which eight called for advisory opinions and 
four for judgments. Nor was it comprehended that the 
Court would be almost exclusively occupied with interpreting 
and applying the terms of the Peace Treaties. But of all the 
matters submitted, only two, the Nationality Decrees of 


236 THE SENATE AND THE COURT 


Tunis and Morocco, and the Status of Eastern Carelia, arose 
under conventions not a part of the Peace settlement; but 
in neither instance could the Court deal with the merits of 
the question submitted. Also, both of these matters were 
submitted for opinions and not for judgments indicating the 
range of the advisory competence of the Council and of the 
advisory proceedings of the Court. (2) When the proposal 
was submitted to the Senate, it was not known that the Court 
would undertake extra-territorial duties nor that it would 
perform non-judicial acts of a political nature as it is permitted 
to do under Article 36. Such is the fixed policy of the Court. 
(3) In 1923, it was not known that the Court would be called 
upon to settle controversies by making appointments of 
arbitrators, thus making its function subsidiary to conciliation 
and arbitral proceedings through the appointment of officers to 
serve in other tribunals. Under these circumstances the 
advancement of the judicial opportunities of the Court to settle 
international controversies on a basis of justice dissolve under 
its co-operation with political tribunals. (4) In 1923, it was 
assumed that domestic questions were safeguarded under 
paragraph 8 of Article 15 from consideration or recommenda- 
tion by the Council. The Japanese amendment to the Geneva 
Protocol indicated that such guarantee might be interpreted 
differently, a position in which the entire Assembly concurred. 
In 1923, it was not appreciated that the judicial settlement 
of international controversies, as provided for by the Advisory 
Committee of Jurists, would certainly give way to the political 
settlement of such disputes through the Council. The Treaty 
of Mutual Assistance in September of 1923, the Geneva 
Protocol of September, 1924, the Locarno Treaties of 
October, 1925, and the record of the settlement of disputes 
establishes beyond a doubt that the Council and not the Court 
is the authoritative body to settle disputes and whatever part 
the Court plays in such settlements will be largely tributary 


PROPOSALS SUBMITTED TO THE SENATE = 237 


to the Council; and, therefore, whatever contribution the ad- 
herence of the United States makes, will strengthen, not the 
judicial settlement of disputes through the Court, but their 
political adjudication through the Council. (5) When the 
proposal was made to the Senate in 1923, it was not known that 
the character of the Court could be profoundly altered without 
changing a line in the Statute. The interpretation in the 
Geneva Protocol given to the optional clause in Article 36 
of the Statute and the interpretation of Article 36 given by the 
Court under the Lausanne Treaty proves beyond a doubt that 
such independent instruments may change the character of the 
Court. Therefore, any reservations concerning amendments 
of the Statute proposed in the early history of the Court, are 
clearly inadequate in the light of more recent history. The 
record should be examined in its wider ramifications. (6) In 
1923, it was not known that through these indirect interpreta- 
tive revisions of the Statute, the Court might be used as the 
instrument to extend the competence of the League, but 
such was the revelation made in relation to domestic questions 
by the Geneva Protocol. (7) When the proposal was made 
to the Senate, it was not appreciated that through the broad 
provision of Article 14 all forms of jurisdiction conferred upon 
the Court were convertible into advisory proceedings and that 
the contribution of the United States in future may be largely 
limited to this competence. But the labor cases, and the 
procedure adopted for transit, and for controversies over 
minorities indicate that such is the fact and that the policy of 
intervention by the Council between the parties and the Court 
has now become fixed. (8) In 1923, it was known that the 
Advisory Committee of Jurists, and two Americans—Mr. Root 
and Mr. Moore—had expressed their concern over the resort 
to advisory opinions in cases involving litigious matters—as 
being contrary to all juridical principles and as not advancing 
the method of judicial decision between states. It is now 


238 THE SENATE AND THE COURT 


known that every one of the twelve questions submitted by 
the Council for an advisory opinion has involved a right of the 
discretionary power of a state, of free speech, of the right 
to conduct researches, or of the rights of liberty, property, 
citizenship or of autonomy in domestic affairs. The policy 
has been fixed by the Council which has submitted these 
matters for opinions. This policy is so diametrically opposed 
to the policy of the Federal and State Courts of the United 
States, as declared without exception, that it calls for an 
explanation as to the grounds upon which a reconciliation of 
the two policies may take place. (9g) When the proposal was 
submitted to the Senate it was not appreciated that litigant 
states would be placed in a position of inequality before the 
Court on the theory that because the proceeding was advisory, 
the issues were less real. Nevertheless, the dispute over Iraq is 
being heard with Great Britain having a national on the bench 
and Turkey not being so favored. This is contrary to the 
whole principle underlying the institution of national judges, 
wherein the policy of the Court was adopted on the ground 
that the main types of civilization were to be represented and 
it is so stated in the Statute. The Mohammedan group cer- 
tainly represents a distinct type of civilization and has no 
national on the Court in a case involving its most vital economic 
interests. The practice of inequality before a court is not 
one which the United States accepts in principle. (10) When 
the proposal was submitted to the Senate, there was confusion 
concerning the nature of the sanctions behind the decisions 
of the Court. The Locarno Treaty of Mutual Guarantee 
leaves no doubt that the military and economic sanctions con- 
tained in Article 16 of the Covenant will become the sanctions 
for decisions of the Court and that they will be applied through 
regional guarantees. This provision definitely brings the 
decisions of the Court within military sanctions, and there 


PROPOSALS SUBMITTED TO THE SENATE = 239 


would seem to be no reason why treaties in the future should 
not lay upon the Court the duty of nominating Allied com- 
manders to head military expeditions, arranged by guarantors, 
to enforce decisions of the Court. The Locarno guarantee is a 
fact ; the use of the Court to direct operations to execute its deci- 
sions is a probability ; both to be taken into consideration in the 
debate upon the question of adherence. (11) In 1923, when 
the adherence of the United States was recommended, it was 
not believed possible that the Court would come to occupy so 
unimportant a place in the prevention of war, and that the 
Council and Conference of Ambassadors and conciliation 
tribunals and every kind of pacific settlement, other than 
judicial decision, would be preferred to the Court. The Geneva 
Protocol with its devitalizing of the optional clause and regional 
pacts, and the actual record of wars and settlements, indicated 
that the whole process of settling disputes is headed up to 
the Council and to the Allied Powers and not to the Court 
with its more representative composition. No state in the 
light of the record can hope to contribute to pacific settlement 
except in the degree to which it recognizes the authority of the 
League of Nations over its members. The development of the 
machinery of the Council and of the Secretariat and the in- 
creasing network of agreements by which the powers of the 
Council are definitely augmented as an interventional body be- 
tween parties and the Court are facts which have become 
apparent since 1923. The trend toward conciliation, the 
reversion to arbitration, the new advisory policy, and the small 
place reserved for judicial decisions suggests that if the United 
States desires to maintain the traditional principles underlying 
conciliation, arbitration and judicial decisions, and their careful 
delimitation restricting each to the field in which it is com- 
petent to function effectively on a basis of appropriate pro- 
cedure and law, further inquiry may be desirable. 


240 THE SENATE AND THE COURT 


289. Questions of principle and policy are involved in the 
pending proposals: The Lodge plan proposes: (1) Calling 
of a Third Hague Conference; (2) definition of “state,” exclud- 
ing dominions and colonies, reducing the British vote to one in 
the election of judges; (3) enlargement of the Court and elec- 
tion of judges by general and special committees ; (4) expira- 
tion of term of office of a part of the judges every three 
years; (5) extraordinary sessions of the Court to be called: 
only by two signatory states; (6) impeachment of judges by 
special committees; (7) fixing of salaries in the Statute; (8) 
omission of ex aequo et bono; (9) abolition of special chambers 
for labor and transit; (10) revision of a judgment when the 
Court applies a theory of international law which a general 
conference of states has refused to recognize as such; (11) the 
authority of United States laws within its own jurisdiction to 
be recognized by the Court; (12) advisory opinions may not be 
rendered on specific questions recognized by the United States 
to be domestic; and (13) cases in which the United States is 
a party require a special agreement, having consent of the 
Senate, for submission of a dispute to Court. The Pepper 
plan proposes: (1) The amendment of the Statute as a condi- 
tion to adherence; (2) disclaimer of responsibility for advisory 
opinions ; (3) adherence to Monroe Doctrine; and (4) separa- 
tion of Court from League. The Hughes-Harding plan pro- 
poses: (1) Adherence with the privilege of participation in 
elections; (2) right to a voice in amendment of the Statute: 
and (3) of performance of political duties within the League 
of Nations. The reconciliation of these various proposals, to- 
gether with the fulfillment of the pledges of the Republican 
party, appears to be the problem before the Senate. 


CHAPTER XIX 
INTERPRETATION AND EXTENSION OF PENDING PROPOSALS 


290. The general statement that adherence shall not in- 
volve any legal relation on the part of the United States 
to the League of Nations nor the assumption of any obli- 
gations under the Covenant requires interpretation: This 
condition lays down a general principle. In the absence of 
any definition or indication as to what will constitute a legal 
relation or obligation under the Covenant, the interpretation 
of this condition will be left to the executive branch of the 
Federal Government. It seems, therefore, desirable that the 
Senate, in accepting this general principle, should state its 
understanding in the form of an interpretative resolution 
covering certain essential points to the effect: (1) The 
United States understands that in this act of adherence, it 
assumes no obligation to be bound by an election, decision, 
act, report or finding of the Council or Assembly of the 
League of Nations; also, that it incurs no obligation whatso- 
ever under the Covenant or the Treaty of Versailles; and 
that any national of the United States may withdraw (as 
provided for in Article 24 of the Statute) in any matter wherein 
the Court undertakes to perform any duties under the Peace 
Treaties other than the determination of suits between states 
or whenever the Court sustains any non-judicial relation to the 
League of Nations. (2) The United States understands that 
under Articles 12 and 13 of the Covenant, as amended to 
include judicial decisions, the recommendations for general 
sanctions for the execution of opinions or judgments of the 

241 


242 THE SENATE AND THE COURT 


Court are vested in the Council of the League of Nations and 
that the sanctions which the Council may recommend to mem- 
bers of the League may be either of an economic or military 
character, as specified in Article 16, and that they are applicable 
to non-member states under Article 17 of the Covenant. 
Should the United States submit any dispute to the Court, 
it is with the understanding that it will refuse to accept or 
accede to the right of the Council to recommend sanctions with 
respect to any judgment or opinion rendered in any matter to 
which the United States is a party. The United States will 
continue its policy of relying upon good faith for the en- 
forcement of treaty obligations and international law. (3) 
The United States reserves the right to withdraw its ad- 
herence to the Protocol establishing the Permanent Court of 
International Justice, through resolution by the United States 
Senate, whenever that body shall deem the grounds to be 
sufficient therefor. Such withdrawal shall become effective 
within a period of one year after the adoption by the United 
States of the resolution of withdrawal. During such period 
of one year, no decision taken by the Court shall impose any 
obligation upon the United States, but all obligations incurred 
prior to the resolution of withdrawal shall be faithfully 
executed.1 (4) The United States will not submit to the 
jurisdiction of the Court, nor to arbitration or inquiry by the 
League of Nations, nor to an advisory opinion by the Court, 
any question which, in the judgment of the United States, de- 
pends upon or relates to its established policy, commonly known 
as the Monroe Doctrine; which is hereby declared to be wholly 


1 The late Senator Lodge proposed the following condition: 

A signatory Power may withdraw from the Court and terminate 
its obligations under this statute after giving two years’ notice of its 
intention to do so to the secretary of the Electoral Commission or to 
the other signatory powers.—Article LXIV of Resolution No. 122, 
68th Congress, First Session. 


INTERPRETATION OF PENDING PROPOSALS 243 


outside of the jurisdiction of the League of Nations and of 
the Permanent Court of International Justice and unaffected 
by any provisions contained in the Covenant, Court Statute, 
or any instrument which is intended to supplement, or interpret 
the said instruments. (5) The United States reserves to 
itself exclusively the right to decide what questions are within 
its domestic jurisdiction and declares that all questions relat- 
ing wholly or in part to its internal affairs, including immigra- 
tion, labor, coastwise traffic, the tariff, debts and all other 
domestic questions which Congress shall have the right to 
define further, are wholly within the jurisdiction of the United 
States; and are not, under the act of adherence, to be con- 
strued as being submissible for advisory opinions, judgments 
or decisions either to the Council under Article 17 of the 
Covenant, or to the said Court or to any agency thereof, or to 
the decision or recommendation of any foreign power what- 
soever.? 


291. The condition that the United States shall partici- 
pate in the election of judges calls for a full understanding 
of the proposed method of participation: This condition 
would leave the method to the sole discretion of the Department 
of State. An interpretation whereby the Senate retains a 
measure of control over the proceedings would necessitate that 
the Congress of the United States reserve the right to provide 
by law for the appointment and duties of representatives in the 
Permanent Court of Arbitration with respect to the nomination 


2 The late Senator Lodge proposed the following Article as part of 
Resolution 122, 68th Congress, First Session: 

The Court shall be bound by the principle that international law 
recognizes the authority of the laws of the United States within its 
own jurisdiction as applied to foreigners or to foreign-owned property 
therein, whether in time of peace or war.—Article LXVI. 

See Annex VI, for Senator Lodge’s reservation concerning advisory 
opinions. 


244 THE SENATE AND THE COURT 


of judges for the Court; and Congress may, in its discretion, 
provide for the participation of the United States in the elec- 
tion of judges in such manner as is not inconsistent with its 
policy of non-participation in the political activities of the 
League. Until such appointments, duties and participation 
have been provided for by Congress, no person shall represent 
the United States, nor perform any duties in connection with 
said Court, as representing the United States; and no citizen 
of the United States, shall be selected or appointed by any 
foreign power to perform such duties, except with the consent 
of the Senate of the United States. 


292. The proposal that the United States pay a fair 
share of the expenses of the Court requires interpretation 
to assure protection to the interests of the United States: 
It appears from action taken by the Assembly and Council that 
according to the Financial Regulations of the League which 
came into force on January Ist, 1923, the Court proposes its 
own budget which is submitted to the Supervisory Commission 
of the League; this Commission reports to the Assembly, which 
body may amend such budget. From each contribution re- 
ceived by the Financial Director of the League of Nations, the 
Court will be granted a share corresponding to the proportion 
which its own budget bears to that of the League. The Court is 
granted advances from the working capital fund of the League. 
The general proposal, therefore, that the United States pay its 
fair share as determined and appropriated by Congress would 
seem to require an interpretation that the Senate understands 
that such reservation entitles it to an examination of the pro- 
posed budget and its apportionment among other signatory 


S$ For full account of method of making budget and disbursing 
funds, see First Annual Report of the Permanent Court of Inter- 
national Justice, Series E., No. 1, p. 279. 


INTERPRETATION OF PENDING PROPOSALS 245 


states, together with the right to propose modifications and to 
pay the amount appropriated by Congress to the Registrar of 
the Court. If, however, Mr. Harding’s proposal is carried into 
effect, the fixing of compensation and the apportionment of 
expenditures also should be transferred to the Court or to some 
body other than the League. 


293. The condition that the Statute shall not be amended 
without the consent of the United States does not go far 
enough: This proposed condition does not appear to take into 
consideration sufficiently the extent to which the functions of 
the Court may be affected by treaties and conventions, under 
the terms of Article 36 of the Statute, granting to the Court 
jurisdiction as to matters contained therein; nor does it take 
into consideration the possibility of altering the powers of the 
Court through amplification of Article 14 of the Covenant in 
accordance with which the Court is established. As against 
these contingencies the proposed condition offers no safeguard 
and the Senate may deem it necessary to state its interpretation 
to the effect: (1) That no amendment to the Court Statute 
shall be adopted by the Assembly and submitted for ratification 
without the consent of the United States. (2) That the 
terms of the Statute shall not be altered indirectly through 
revision by the Assembly or groups of states but its terms 
shall not be altered in any manner whatsoever except with the 
consent of all the signatories to the Protocol of Signature; nor 
shall it be authoritatively interpreted except by the Court. 
(3) That the Court will not undertake non-judicial duties 
which may be prescribed for it in treaties without the written 
consent of the signatories to the Protocol of Signature, and 
to this end it is believed paragraph 1 of Article 36 of the Statute 
should be restricted through appropriate amendment to suits 
between states or to controversies which may be submitted to it 
under a general or special convention. 


246 THE SENATE AND THE COURT 


294. A re-statement of the policy of the United States 
on compulsory arbitration will protect the United States 
with respect to the optional clause in the Statute: In view 
of the fact that the Statute provides for a permanent personnel 
with no possibility of eliminating nationals of states whose 
policy toward the United States may be known to be prej- 
udicial,* it may be questioned whether a restatement of the 
policy adopted at the time of ratification of The Hague Conven- 
tion of 1907, should not be made at the time of adherence to 
the Court Statute. If so, the proposal submitted by the late 
Senator Lodge would seem to offer an adequate interpreta- 
tion: “Before a case in which the United States is concerned 


4On the matter of the feasibility of submitting cases to a fixed 
and permanent personnel of judges, Prof. Borchard observes: 

With respect to the effect of a fixed and permanent personnel 
on the disposition of nations voluntarily to submit questions to 
judicial settlement, certain facts warrant consideration. In the sev- 
eral cases which the United States has voluntarily submitted to the 
Permanent Court of Arbitration, we examined with the greatest 
care the records of the arbitrators nominated in order to determine 
whether by word or act they could be deemed ever to have harbored 
a sentiment or doctrinal view unfavorable to the United States. * * * 

It was only after we were satisfied of the personal and profes- 
sional records of the arbitrators nominated, in respect of their dis- 
position toward the United States, that the United States agreed 
to their appointment as arbitrators in the cases mentioned. Other 
nations doubtless entertain similar views of such matters. When, 
therefore, the time comes for the submission of one of our cases to 
the World Court, is it not clear that the presence on the Court of 
even a single judge, to whose views, personal or professional, we 
have reason to object, will deter us from submitting the case? The 
personnel of the arbitrators or judges is one of the strongest factors 
in inducing or preventing submission. The longer the Court sits, 
the more will the views of its judges become established and known. 
Any nation, therefore, having a national interest in sustaining a 
different view will hardly be disposed to submit its case to a judge 
or judges whom it will necessarily regard as biased. 


INTERPRETATION OF PENDING PROPOSALS 247 


can be submitted to the Court a special agreement must be 
concluded between the United States and the other parties in 
interest, defining clearly the matter in dispute, the scope of 
the powers of the Court, and the periods for the several stages 
of procedure, and such special agreements on the part of the 
United States can only be made by the President of the United 
States by and with the advice and consent of the Senate 
thereof.” 


295. The principle of judicial decision as a method of 
settling international disputes is not specifically advanced 
by the Harding-Hughes proposal: An inseparable obstacle 
to such advancement exists in the advisory proceedings of the 
Court, and the extent to which such opinions are being resorted 
to, threatens to limit every other form of competence. In 
order to maintain the American principle that such opinions 
should not be applied to actual controversies nor to an unlimited 
range of questions, and that such opinions should not be 
applied to domestic questions, or through the exclusive channels 
of the Council or Assembly, the conditions now a part of the 
Harding-Hughes proposal, should be extended to include a 
condition concerning advisory opinions to the effect that the 
adherence of the United States should not become effective 
until such time as (1)The principle of advisory opinions should 
be restricted to international questions involving constitutional 
matters or important questions of law not pertaining to actual 
controversies or which do not involve the rights of parties; 
(2) until such time as the principle has been extended to 
states signatory to the Court Statute; and (3) wntil such 
time as the authorization and procedure for advisory proceed- 
ings are specifically incorporated in the Statute and are no 
longer dependent upon the Covenant. Such a reservation 
would bring the foreign juridical policy of the United States 
into conformity with the principles of the existing Federal 


248 THE SENATE AND THE COURT 


and state juridical policy and also with the proposal made by 
Mr. Harding. 


296. The development of international law through the 
jurisprudence of the Court is not specifically furthered by 
the Harding-Hughes plan: In order to satisfy the demand 
in the United States that there be a substantial body of accepted 
law, codified and expanded to meet the demands which may 
be made upon the Court for judgments, the conditions, now a 
part of the Harding-Hughes proposal, should be extended to 
include the following understanding: (1) That advisory 
opinions are not to be regarded as precedents establishing 
principles of law applicable to the adjudication of international 
disputes and (2) that the signatories to the Protocol establish- 
ing the Court of Justice, together with such other states as they 
may determine to invite, will, within one year, after the ad- 
herence of the United States becomes effective, call a con- 
ference, for the purpose and in the manner prescribed in the 
Resolution of Recommendation submitted by the Advisory 
Committee of Jurists, providing for interstate conferences to 
carry on the work of the two first Conferences at The Hague; 
and that such signatories will in good faith provide for the 
creation of a code of international law to guide the decisions 
of the Court. 


297. The abolition of war as a method of settling dis- 
putes is not recognized in the Harding-Hughes proposals: 
On the contrary, they recognize the Covenant which authorizes 
war as a method of settling international disputes. In order 
to satisfy the demand in the United States that war be out- 
lawed, the conditions now a part of the Harding-Hughes pro- 
posals, should be extended to include the conditions specified 
under the coalition agreement to the effect, namely:* “(1) The 


5 See Chapter XV, p. 176. 


INTERPRETATION OF PENDING PROPOSALS 249 


immediate adherence of the United States to the Court Pro- 
tocol, with the Harding-Hughes-Coolidge reservations. (2) 
Within two years after the adherence by the United States 
to the Court Protocol, the signatories thereto, including the 
United States Government, shall formally declare by appro- 
priate governmental action their endorsement of the following 
basic principles of the outlawry of war, and shall call an 
international conference of all civilized nations for the purpose 
of making a general treaty embodying these principles: (a) 
War between nations shall be outlawed as an institution for 
the settlement of international controversies by making it a 
crime under the law of nations. (The question of self-defense 
against attack or invasion is not involved or affected.) (b) 
A code of the international law of peace, based upon the out- 
lawing of war and upon equality and justice between all 
nations, great and small, shall be formulated and adopted. 
(c) When war is outlawed the Permanent Court of Interna- 
tional Justice shall be granted affirmative jurisdiction over 
international controversies between sovereign nations, as pro- 
vided for and defined in the code and arising under treaties. 
(3) Should such signatories within two years after the ad- 
herence of the United States fail to make such declaration 
and join in a conference for the purpose of making such general 
treaty, the United States may in its discretion withdraw its 
adherence to said Court Protocol; and, further, should such 
signatories fail, within five years after the adherence of the 
United States to said Court Protocol, to make and execute 
a general treaty embodying in substance the aforesaid princi- 
ples, the adherence of the United States shall thereupon termi- 
nate; but any action of the Court taken in the interim shall 
remain in full force and effect.” 


298. The adherence of the United States by the Harding- 
Hughes plan carries with it the moral obligation to submit 


250 THE SENATE AND THE COURT 


disputes to the Court: This obligation is not legal but it is 
moral, and were there no such implied obligation, there would 
be no genuine contribution by precept to the stabilization of 
peace through juridical settlement. That such obligation will 
be recognized has been indicated by the correspondence already 
entered into between the governments of the United States 
and Great Britain, France, Japan, Norway and the Nether- 
lands, respectively. But the European tendency, to resort to 
conciliation commissions, arbitral tribunals, or the Council be- 
fore resorting to the Court, and to differentiate between 
political and legal questions may operate to place the United 
States at a disadvantage unless the understanding is set forth 
at the outset that the United States retains the right to submit 
to the Permanent Court of Arbitration or other tribunal such 
matters as it deems to be susceptible to more satisfactory 
settlement through a tribunal not having a fixed personnel 
nor an inelastic procedure.® 


299. These interpretations and additional proposals for 
conditions of adherence grant increased protection to the 
United States against the liability of foreign entanglements: 
The guarantees of rights are explicit and specific under these 
interpretations while the additional conditions contemplate the 
prevention of war in a manner not comprehended by the Cove- 
nant or the Statute, nor in regional security pacts. When ac- 
cepted, these proposals will increase the judicial opportunities 
of the Court and will provide a code of law for the decisions of 
the Court. 


®The right of the Senate to qualify its consent to ratification by 
reservations, was established through a reservation to the Jay Treaty 
of 1794, has been exercised in about seventy cases and has been 
judicially recognized. (Wright: The Control of Foreign Relations, 
Pp. 253.) 


INTERPRETATION OF PENDING PROPOSALS 251 


300. The foregoing interpretations and additions to the 
Harding-Hughes proposals should be embodied in a com- 
promise resolution: The Harding-Hughes proposals, as sub- 
mitted to the Senate in the Swanson Resolution, do not express 
the political judgment of the United States. This Resolution 
does not express in a Republican measure the views of the 
Administration; it does not express in a Democratic measure, 
the will of the Democratic minority; it does not satisfy both 
wings of the Republican party; it does not meet the demand of 
the people for the abolition of war; and, finally, it does not 
reflect the intelligence of 1926 as differentiated from the in- 
formation of 1923 when the proposal was made. A com- 
promise resolution of reconciliation appears to be inevitable if 
the act of adherence is to represent the political judgment of 
the United States. 


CHAPTER XX 
CONCLUSION 


The Republican Party has made two inseparable pledges to 
the people of the United States concerning its foreign peclicy. 
These pledges are part of the Republican National platform and 
have been endorsed by two presidents of the United States. 
The fulfillment of these two pledges is, therefore, a political 
obligation and a political necessity. These pledges are first, to 
endorse the Permanent Court of International Justice by ad- 
herence to the Protocol of Signature; and second to assume no 
obligations under the Covenant. 

To fulfill one pledge without breaking the other presents a 
dilemma, for there is no doubt that the Court which it is pro- 
posed to endorse is the juridical branch of a political institution 
functioning under the Covenant under which the Republican 
Administration has pledged itself to assume no obligations. 
The question is, therefore, in what manner may the two pledges 
be fulfilled. 

The Harding-Hughes proposal, as has been seen, commits 
the United States to an endorsement and participation not only 
in the juridical work of the Court, but also to participation in 
the political affairs of the League. For it should be clearly 
understood that the Court at The Hague performs its duties un- 
der the enacting statute, but its general policy and fiscal policy 
is determined at Geneva by the Assembly and by the Council of 
the League of Nations. It appears to be practically impossible 
for the United States to assume any administrative duties with 
respect to the Court, namely through election of judges or finan- 

252 


CONCLUSION 253 


cial support of the Court, without assuming obligations under 
the Covenant. There is no condition and no understanding ; 
there is no reservation and no generalization which disposes of 
the inescapable basic fact that the administration of the Court 
is vested in the League, that its policies are fixed by the Council 
under Article 14 of the Covenant and that the Court is estab- 
lished in accordance with this Article and any state which par- 
ticipates in any function of the League assumes obligations un- 
der the Covenant. However much advocates of peace may 
seek to escape this fact, it is not for the Senate of the United 
States to blink its implications. The issue presented by the 
Harding-Hughes proposal, therefore, involves not solely the 
keeping of one pledge but of two pledges. 

In order to fulfill the first pledge made to the American peo- 
ple, and to advance the cause of peace and justice through judi- 
cial decision, there does not seem to be any necessity for the 
United States to send representatives to Geneva to vote for 
judges nor to make its contribution to the expenses of the 
Court. For unless the United States intends to participate in 
all of the discussions of the League which pertain to the Court, 
including revisions of the Covenant and Statute, advisory opin- 
ions, sanctions, reference to the Court of non-judicial matters 
and other questions of policy and administration, it is futile to 
expect any measure of legal control over the court of its 
adoption. This is a question of grave importance to be de- 
cided in all of its implications and ramifications before adher- 
ence. 

As to the election of judges, these members of the Court are 
the representatives of the League of Nations and not of the 
states whose nationals they may be. On this theory, which is 
responsible for the present method of election, the United 
States will participate in the election of representatives of the 
League. It may be objected that should the United States fail 
to participate in such elections it may have no national on the 


254 THE SENATE AND THE COURT 


bench and therefore will be reluctant to submit cases. To this 
objection it may be replied, first that since the Statute requires 
that the Court represent the main civilizations, the obligation is 
upon the League and not upon the United States to require ob- 
servance of a League Statute; and to bring to the Court the 
representatives of different legal systems; and, second, no state 
may have more than one national during the conduct of a case 
and Article 31 of the Statute assures to the United States a na- 
tional on the Court whenever it is a party in interest. 

As to the conduct of the financial affairs of the Court through 
the Financial Regulations adopted by the League wherein the 
Council passes first upon questions of budget, allocation of 
funds, pensions and other fiscal matters, and the Assembly then 
considers the matter; and wherein membership in the League, 
‘not signatures to the Statute determine the financial obligation 
with respect to the Court, it is an unbusiness-like proceeding 
and, if continued, will require this country to assume financial 
obligations under the Covenant for it is membership in the 
League which now determines the assessment. There appears 
to be no sound reason why the United States should not insist 
upon fiscal autonomy for the Court wherein the Court itself 
prepares its budget, allocates the assessment, fixes salaries and 
pensions and submits the matter to signatory states for their ap- 
proval, revision or recommendation. This would relieve the 
United States of administrative duties with respect to the 
League. As to the execution of the sanctions for the judg- 
ments of the Court, this also is an administrative matter; and 
the administrator is the Council; for it may recommend to its 
own members their application. Voting as members of the 
Council in favor of their application is equivalent to voting 
for their execution as individual states. When the United 
States accepts the administrative duty of electing judges who 
represent the League, it will inevitably become involved in the 
execution of the judgments of the Court for whose election 


CONCLUSION 255 


and maintenance through the League it becomes jointly re- 
sponsible. And should this not occur at the outset, officially 
and openly it must occur through diplomatic channels, for the 
principle is inescapable that a state cannot accept certain 
administrative duties in a political organization and hope to 
escape the consequences of other political duties performed by 
that same body. 

The control of the general policies of the Court is not vested 
in the Statute; it is vested in the Covenant. It is by revision 
of Article 14 of the Covenant, in accordance with which the 
Court is established, that its functions may be changed. For 
instance, should the Council desire to make unquestionably 
mandatory upon the Court the granting of advisory opinions 
upon its request, or that such opinions should be confidential 
to the Council, Article 14 of the Covenant may be amended 
by the Assembly to include such a provision and since the Court 
is established in accordance with that Article the revised pro- 
visions are binding upon the Court. Or, again, should Article 
14 of the Covenant be revised to provide that the Court should 
appoint a Higher Military Command for the enforcement of 
its decisions by members of the League, as prescribed by the 
Council under Article 13 of the Covenant, and as set forth 
in Articles 16 and 17, upon ratification of this amendment as 
passed by the Assembly by the requisite number of states, the 
Court would be bound to perform the duty laid upon it by 
its co-ordinate legislative branch. It is, therefore, futile to 
expect to protect the United States from changes in the 
general policies of a Court through a reservation concerning 
the amendment of an instrument which does not prescribe nor 
control the policies of the Court; and it is erroneous to believe 
that the United States will secure itself against secret advisory 
opinions or unsought advisory opinions affecting its interests, 
or against mandatory advisory opinions for the Court without 
restricting the rights of the League under Article 14 of the 


256 THE SENATE AND THE COURT 


Covenant to do as it pleases with the policies of the Court. 
That such protection should be a condition precedent to ad- 
herence and not a subsequent hope requires no argument. 

For these and other reasons hereinbefore set forth, the con- 
clusion is reached that the Republican Administration will be 
fulfilling its pledges to the people of the United States if it ad- 
heres solely to the judicial functions of the Court and does not 
participate in the administrative functions of the League; and 
if it assumes responsibility only for those matters over which 
the Court has control and not for those matters over which 
the League has control. And, per contra if the United States 
does accept administrative duties under the League it will 
be assuming obligations under the Covenant. In accordance 
with this view the resolution of adherence, following a proper 
preamble for affiliation, should provide for the following con- 
ditions and understandings: © 

1. The United States accepts the invitation contained in the 
Protocol of Signature of adhering to the adjoined Statute 
for the purpose of submitting to the jurisdiction of the 
Permanent Court of International Justice such controversies 
as it may specify in its treaties or in general conventions, or 
which it deems generally suitable for submission to such Court: 
reserving the right to resort to the Permanent Court of 
Arbitration or to any other tribunal, when, in its judgment, that 
procedure best serves the ends of justice and peace. When- 
ever it shall have occasion to submit a matter to the Court, 
the United States will accept the provisions of the Statute as 
applicable to the conduct of such case, and will in good faith 
accept the decision of the Court; without, however, recognizing 
the advisory competence of the Court with respect to any 
matter submitted without its consent. Should the Court at 
any time render secret or confidential opinions or be required to 
render opinions by the Council or do so against the protest 
of a state not signatory to the Covenant, the United States 


CONCLUSION Tie. 


will consider such act to be sufficient ground for the with- 
drawal of its adherence. 

2. Such adherence shall take effect only when the Court 
is granted fiscal autonomy with respect to making its budget 
and fixing the items therein, and allocating its apportionment 
among signatory states for their approval or recommendation ; 
assessments to be payable to the Registrar of the Court. For 
this purpose the Statute should be amended, granting to the 
Court full fiscal autonomy limited to its own signatories. 

3. The United States understands that in adhering to the 
Protocol of Signature, it assumes no obligations under the 
Covenant and will, therefore, not participate in the election 
of judges nor in the execution of sanctions, nor in any ad- 
ministrative function with respect to the Court, now per- 
formed or to be performed by the League of Nations; until 
such time as Congress may authorize the assumption of such 
duties and prescribe the method of the participation by the 
United States. 


ANNEX I 
SUMMARY oF ApyIsory OPINIONS AND JUDGMENTS 
I. ADVISORY OPINIONS 


(1) Workers Delegate from the Netherlands. The question in- 
volved in this controversy was whether a state, in nominating workers 
delegates and advisers to attend International Labor Conferences under 
Article 389 of the Versailles Treaty is bound to select them upon the 
recommendation of the labor organization which has the largest mem- 
bership, or whether it may select them from persons recommended by 
organizations which, together, represent a larger membership than the 
one organization. Article 389 of the Treaty of Versailles specifies that 
such delegates shall be chosen in agreement with the industrial organi- 
zations which are most representative of employers or work people. 

The facts were that the Netherlands Government had appointed its 
delegate and advisers to the Third Session of the International Labor 
Conferences from nominations made by three labor organizations which 
had agreed, and which together included more members than the single 
largest organization. This latter organization protested to the Inter- 
national Labor Office against seating the delegate thus selected, claim- 
ing for itself this right, as the most representative organization. The 
Conference, however, seated the delegate with the reservation that. his 
seating was not to be considered a precedent, and passed a resolution 
requesting the Governing Body of the International Labor Office to 
obtain, through the Council, an opinion as to the interpretation of 
Article 389 of the Treaty of Versailles and as to the rules which 
should be observed by members of the International Labor Organiza- 
tion in order to comply with said Article. The Governing Body, having 
approved the request, the Director forwarded to the Council a letter, 
the first part of which embodied the substance of the Resolution, but 
which concluded with the request for an advisory opinion on the ques- 
tion whether the Netherlands’ delegate had been properly nominated. 

The Council thereupon submitted to the Court the question “whether 
the workers delegate for the Netherlands, at the Third Session of the 

258 


ANNEX I 259 


International Labor Conference was nominated in accordance with the 
provisions of paragraph 3 of Article 389 of the Treaty of Versailles.” 
The Netherlands Government protested to the League that the formu- 
lation of the question was not in accordance with the resolution passed 
by the Labor Conference. The question was, however, not rectified by 
the Secretariat, on the plea that the rules of the Court required a defi- 
nite statement of a matter submitted. The form of the submission 
being correct, the Court had no authority to enquire into the man- 
ner of submission, which involved: (1) A misrepresentation of the ac- 
tion taken by the Labor Conference; and (2) a violation of the terms 
of Article 4 of the Covenant, in that the Council had considered a 
matter especially affecting the Netherlands Government, in the absence 
of a representative of that state. 

The Court, therefore, took jurisdiction over the matter. In its opin- 
ion it stated that the sole object of the question submitted was to 
obtain an interpretation of Article 389; and that the act of the Nether- 
lands had been made the subject of the question, solely in order to fix 
clearly the state of facts. The opinion, delivered on July 31st, 1922, 
was to the effect that the Netherlands delegate had been nominated 
in accordance with the Treaty of Versailles, in that the three organiza- 
tions which together included more members than the single largest 
organization, were more representative, and had, therefore, a right to 
nominate the delegate representing the Netherlands. The opinion was 
transmitted to the Council, which, having taken note, forwarded it to the 
Director of the International Labor Office, by whom it was accepted. 


(2) Conditions of Agricultural Labor. The question involved in 
this controversy was whether agricultural labor was included within 
the phrase “industrial life and labor” used in Article 396 of the Treaty 
of Versailles. The dispute arose under this Article which defines the 
functions of the International Labor Office; and under Article 427 
which lays down the principles covering the subjects to be included in 
the improvement of labor conditions. 

The facts were as follows. The First General Labor Conference, 
held in Washington, reached certain decisions, respecting labor matters. 
In accordance therewith, the Conference of 1921 included upon its 
agenda a discussion of the adaptation of the Washington decisions to 
agricultural labor. The French Government requested that considera- 
tion of agricultural labor be withdrawn from the agenda, chiefly by 
reason of the unwillingness of France to have discussed regulations 
concerning the eight-hour day with respect to agriculture, This ques- 


260 THE SENATE AND THE COURT 


tion was subsequently removed from the agenda, but on other ques- 
tions concerning agricultural labor the Conference affirmed its compe- 
tence, by vote, and proceeded to adopt certain conventions for the 
protection of agricultural workers. France thereupon requested the 
Council, on January 13th, 1922, to obtain an advisory opinion on the 
competence of the International Labor Organization to deal with ques- 
tions of agricultural labor. Overruling the objections of the Director 
of the International Labor Office, who protested that the Governing 
Body had not been consulted, the Council submitted to the Court the 
question: “Does the competence of the International Labor Organiza- 
tion extend to the international regulation of the conditions of labor 
of persons employed in agriculture?” 

The opinion, rendered on August 12th, 1922, was in favor of the 
International Labor Office to the effect that its competence did extend 
to the international regulation of the conditions of labor of persons 
employed in agriculture. There were two dissenting opinions: M. 
Weiss (France) and M. Negulesco (Roumania), but the opinion of 
the Court as transmitted by the Council was accepted by the Labor 
Office and by France. 


(3) Methods of Agricultural Production. This question was sup- 
plemental to the preceding one, and also concerned the competence of 
the International Labor Office. The facts were as follows: At the 
General Labor Conference of 1921 a resolution was introduced for the 
purpose of conducting an inquiry “with a view to organizing and 
developing effectively agricultural production.” As this resolution 
was somewhat ambiguous, it was suggested that it be submitted to a 
joint agricultural commission. The appointment of such commission 
was placed on the agenda of the session of the Governing Body held 
in January, 1922; on this occasion the French Government protested 
against the appointment of the Commission, requesting that discussion 
of the subject be adjourned until the Court had delivered its advisory 
opinion on the competence of the Labor Organization with respect to 
agricultural lapor. The Governing Body, however, passed a resolution 
affirming that it would proceed to set up the agricultural commission. 
The commission had been appointed and was in process of making its 
studies when the French Government requested the Council to obtain 
from the Court a supplemental opinion on the subject of the compe- 
tence of the Labor Organization to examine proposals for the organiza- 
tion of agricultural production. The object of this request was to 
secure an injunction against research into the conditions of agricultural 


ANNEX I 261 


labor, particularly unemployment as it might be affected by methods 
of production. 

The Director of the International Labor Office, appearing before the 
Council, stated that the Labor Organization had no intention of claim- 
ing competence on the points raised by France, nevertheless the Council 
submitted the following question to the Court: “Does the examination 
of proposals for the organization and development of methods of 
agricultural production, and of other questions of a like character, fall 
within the competence of the International Labor Organization?” 

The Court, being bound by the form of the question submitted, on 
the same day that it rendered an opinion refusing to enjoin the Labor 
Organization from publicly discussing questions of agricultural labor, 
rendered an opinion in which it did enjoin that Organization from con- 
ducting research into methods of agricultural production which involved 
questions of labor; it refused, however, to extend its opinion to cover 
“questions of a like character,’ as being of an indefinite nature. The 
opinion was transmitted by the Council to the Director of the Interna- 
tional Labor Organization and was accepted. 


(4) Nationality Decrees in Tunis and Morocco. The question in- 
volved in this controversy between Great Britain and France was 
whether the protection of British subjects in Tunis and Morocco was 
an international or a domestic matter. The dispute was in no way 
connected with the Peace Treaties. 

The facts were as follows: On November 8th, 1921, the French 
Government, exercising a protectorate over Tunis and Morocco, pub- 
lished in these two countries under the sovereignty of the Bey of Tunis 
and the Sultan of Morocco, certain decrees, the effect of which was 
to confer French nationality upon persons born in those countries of 
parents also born there, and justiciable before French tribunals. By 
these decrees the French Government claimed the right to impose 
the obligations of French nationality upon persons claiming to be 
British subjects, thereby rendering them liable to French military 
service. 

Failing to obtain satisfaction through diplomatic channels, Great 
Britain proposed that the dispute be referred to arbitration, under the 
Franco-British Arbitration Convention of 1903. On refusal of the 
French Government, Great Britain, under Articles 13 and 15 of the 
Covenant, on August 11th, 1922, submitted the matter to the Council 
for adjudication. The Council, however, did not acquire jurisdiction 
over the merits of the dispute, for France claimed that the matter 


262 THE SENATE AND THE COURT 


constituted a domestic issue and, as such, the Council, under paragraph 
8 of Article 15, could not make a recommendation. The question thus 
raised by the French Government was submitted to the Court for an 
advisory opinion. 

The question for submission was framed in agreement by the parties. 
The Council submitted to the Court the question of its own compe- 
tence under Article 15, paragraph 8 and agreed also to request 
the Court to meet in extraordinary session. In the resolution of sub- 
mission it was set forth that the two governments agreed if the opinion 
of the Court should be to the effect that the matter was not solely one 
for domestic jurisdiction, “the whole dispute will be referred to arbi- 
tration or to judicial settlement under conditions to be agreed between 
the governments.” 

The Court was of the unanimous opinion, rendered on February 7th, 
1923, that the matter was of an international character. The French 
Government therettpon proposed that the dispute be submitted to the 
Court on its merits. Great Britain, however, appeared unwilling to do 
so and the original question submitted for adjudication under Article 
13 was not revived before the Council. Diplomatic negotiations were 
resumed between the two countries and on May 24th, 1923, an amicable 
settlement was reached. The Court was notified of the agreement. 


(5) Autonomy in Eastern Carelia: The matter involved in this 
question concerned the point whether the Treaty of Dorpat between 
Russia and Finland and the declaration made by Russia on that occa- 
sion, with respect to Eastern Carelia, constituted an engagement of an 
international character. 

The facts of the case were as follows: Finland separated from 
Russia and regained its independence in 1917. In Eastern Carelia, 
formerly a part of Finland, a movement developed at the same time, 
favoring separation from Russia and autonomy. War having broken 
out between Finland and Russia, Finland assumed protection of certain 
districts in Eastern Carelian territory, and only returned these districts 
to Russia in 1920, when negotiations were opened and a peace treaty 
was concluded at Dorpat. To the Treaty of Dorpat the Soviet Gov- 
ernment annexed a Declaration guaranteeing a certain autonomy to the 
population of Eastern Carelia. The Russian Government did not put 
into operation the terms of the Declaration, whereupon the Eastern 
Carelians reopened their contest for self-determination and self- 
government. Fighting took place, and the Finnish Government appealed 
to the League of Nations, requesting the Council to appoint a Com- 


ANNEX I 263 


mission of Inquiry. The Council undertook to bring about concilia- 
tion between the parties, and, this having failed, was requested by the 
Finnish Government to obtain an advisory opinion from the Court. 

The following question was accordingly submitted by the Counciil 
for an advisory opinion: “Do Articles 10 and 11 of the Treaty of 
Peace between Finland and Russia, signed at Dorpat on October 14th, 
1920, and the annexed Declaration of the Russian Delegation regarding 
the autonomy of Eastern Carelia, constitute engagements of an inter- 
national character which place Russia under an obligation to Finland 
as to the carrying out of the provisions contained therein?” 

Russia refused to appear before the Court, and the Court, applying 
a well-known rule of international law, declined to grant an opinion 
on the question submitted. Instead, on July 23rd, 1923, it rendered an 
opinion on the competence of the Council under Article 17 of the 
Covenant since it declared that no state, without its consent, could be 
compelled to submit its dispute to any form of pacific settlement; that 
states, not members of the League, are not bound by the Covenant; 
and the submission of a dispute under the Covenant could only take 
place by virtue of consent. The opinion was rendered by a divided 
Court, M. Weiss (France), M. Nyholm (Denmark), M. de Bustamente 
(Cuba) and M. Altamira (Spain) dissenting. 

The opinion appears not to have been altogether acceptable to the 
League, for the Fourth Assembly requested the Council to pursue its 
endeavors, and the Council, while noting the opinion of the Court, did 
not formally accept it in principle. Although, no further effort has been 
made to bring this particular dispute within the competence of the 
Council, that body reserves the right to do so. 


(6) Eviction of German Settlers from Poland. The question in- 
volved in this controversy between Germany and Poland was whether 
Poland, under the Minority Treaty, had acted in conformity with her 
international obligations in the expulsion of settlers from lands ac- 
quired from Germany under the Treaty of Versailles. Article 12 of 
the Minority Treaty executed by Poland and the Principal Allied 
Powers, in pursuance of Article 93 of the Treaty of Versailles, pro- 
vides that the stipulations of the Treaty, assuring protection of life, 
liberty and equality before the law to all Polish nationals, shall be 
placed under the guarantee of the League of Nations; and that any 
member of the Council may draw the attention of the Council to any 
infraction or danger of infraction and that the Council may thereupon 
take such action as may be deemed effective in the circumstances. 


264 THE SENATE AND THE COURT 


The dispute arose as follows: Certain German State lands in West 
Prussia were transferred to Poland by Germany under the terms of 
the Peace Treaties. On these lands were 1,565 tenants who had not 
received from the German Government their Aufassung, or certificate 
of title until after the armistice was signed, although all payments and 
obligations had been met. There were also 1,216 settlers who had re- 
ceived no such certificate of title, and 760 settlers who had only obtained 
their final leases after the armistice but the majority had a certificate 
of title. These three classes of tenants the Polish Government pro- 
posed to evict under an agrarian law passed on July 14th, 1920, on 
the ground that those possessing no certificate of title occupied the 
ground illegally, and those having received such certificates since the 
armistice had received them illegally. The settlers, on the contrary, de- 
fended their title on the ground that all payments had been completed. 

Complaints were made in May, Ig21, by the Union of German 
Farmers to the League, and in October, 1921, by the German Govern- 
ment to the Conference of Ambassadors. The League took no action, 
and the Conference succeeded in obtaining a delay of a few months from 
the Polish Government before it would proceed with the planned 
evictions. In November, 1921, a further complaint made by the Ger- 
manic League in Bromberg, Poland, reached the League which also 
succeeded in securing a theoretical extension of time until May 6th, 
1922. During this period, however, expulsions continued, and neither 
the Council nor a special committee nor the committee of jurists ap- 
pointed by the Council to study the question was able to reach a con- 
clusion satisfactory to the settlers and acceptable to the Polish Gov- 
ernment. By December, 1922, Poland had evicted about one third of 
the total number of settlers, and questioned the competence of the 
Council to deal with the matter at all, on the ground that the question 
had been submitted by a private organization (the Germanic League) ; 
that no member of the Council had specifically taken up the matter 
as prescribed in the procedure for minority complaints; and finally, 
that the case did not come under the Minority Treaty but under the 
Treaty of Versailles which it was beyond the competence of the Council 
to apply. 

The Council, however, submitted to the Court in February, 1923, for 
an advisory opinion the following questions: (a) Did the matters in- 
volved come within the competence of the League of Nations, as defined 
in the Polish Minority Treaty, and (b) should the first question be 
answered in the affirmative, was the position of the Polish Government 
in conformity with its international obligations? Although the expul- 


ANNEX I | 265 


sions were continuing, the Council did not request an extraordinary 
session and the Court took up the question only in August, 1923. 

The Court, in its opinion delivered unanimously on September tIoth, 
1923, held, that the question had been submitted by the Council in 
accordance with the Minority Treaties, and that the League was, there- 
fore, competent to deal with the matter. As to the action of the Polish 
Government, it was stated not to be in conformity with the international 
obligation assumed by that state. Meanwhile, however, not more than 
two hundred of the 2,781 German settlers originally in question, re- 
tained their holdings, the rest having been evicted. 

The opinion was sent to the Council and embodied in a resolution 
which was only in part accepted by Poland; and a further controversy 
arose as to (1) the measures to be taken to effect a settlement; (2) 
the right of Poland to obtain judgments in local courts against the 
remaining settlers and to offer them modified contracts after the 
original ones had been declared void. In December, 1923, the Council 
passed a resolution which affected the application of the opinion of 
the Court in that it stated that just compensation to the settlers might 
be substituted for re-establishment on their home-lands. A committee 
was appointed to deal with the matter and on report of the committee 
the Council in March, 1924, gave the representatives of Brazil, Great 
Britain, and Italy full power to meet the Polish delegate, and to re- 
examine and settle the matter. 

In June, 1924, the agreement was reached that a sum of 2,700,000 
gold francs (about $540,000) was to be divided among 500 settlers. 
who were able to claim Polish nationality on July 14th, 1920, Should 
the number of settlers entitled to compensation exceed 530, the Polish 
Government was to increase the sum proportionately; but should it 
be established three months after coming into force of the Germano- 
Polish Convention (then being negotiated at Vienna) that the number 
of settlers entitled to compensation did not exceed 400, the sum set 
aside would be reduced by 20%, and should the number not exceed 
300, by 35%. The apportionment of the sum was to be effected by an 
official of the Polish Government who would deal directly with the 
settlers and whose decisions regarding apportionment were to be final. 
The Convention above mentioned, was signed on August 30th, 1924, 
and the Council was notified of the exchange of ratifications and con- 
firmed it by a resolution on.June 17th, 1925. 

A period of four years elapsed, therefore, between the first com- 
plaint and the date for opening a possibility for compensation claims. 
The claims themselves, under the decision of the Council, are a domes- 


266 THE SENATE AND THE COURT 


tic affair of Poland and will, at the best, be satisfied in the case of 
one sixth of the expelled settlers. The others remain unprovided for, 
under this execution by the Council of the advisory opinion of the 
Court. 


(7) Acquisition of Polish Nationality. The matter submitted to 
the Court was incidental to the main subject of the position of German 
settlers in the territory acquired by Poland from Germany. The ques- 
tion involved was principally the interpretation of Article 4 of the 
Polish Minority Treaty, which provides that persons of German na- 
tionality who were born in Polish territory of parents habitually resident 
there, shall be recognized as Polish nationals even if such persons, 
themselves, were not habitually resident there at the time of coming 
into force of the Treaty. The ground for dispute was furnished by the 
fact that in carrying out the above provision, Poland claimed that the 
actual presence and habitual residence of the parents, at the time of 
coming into force of the Polish Minority Treaty was necessary for 
the acquisition of Polish nationality, while Germany claimed that actual 
residence at the time of birth was sufficient. 

A complaint was made in November, 1921, by the Germanic League 
at Bromberg, requesting relief from the policies pursued by the Polish 
Government toward German settlers in the matter of acquiring Polish 
nationality under the foregoing provision and other provisions of the 
Minority Treaty and the Treaty of Versailles. The Council appointed 
a committee to consider the complaint, which reported on May 17th, 
1922. The report of the Committee was adopted and a copy sent to 
the Polish Government, with a request to forward information. The 
information was furnished, but the Polish Government contended that 
the adjudication of the dispute was not within the competence of the 
League, inasmuch as Article 4 of the Minority Treaty was not placed 
under the guarantee of the League. This question was submitted to 
a committee of jurists which rendered an opinion affirming the compe- 
tence of the Council. The Polish Government, objecting to this in- 
terpretation, entered into direct negotiations with Germany, and the 
Council held the matter in abeyance until it was informed, in July, 
1923, that the negotiations had failed. 

The Council accordingly, on July 7th, 1923, passed a resolution re- 
questing an advisory opinion from the Court on the following ques- 
tions: “(1) Does the question regarding the position of the above- 
mentioned persons, in so far as they may belong to racial or linguistic 
minorities, arising out of the application by Poland of Article 4 of the 


ANNEX I 267 


Treaty of June 28th, 1919, between the Principal Allied and Associated 
Powers and Poland, fall within the competence of the League of 
Nations under the terms of the said Treaty? (2) If so, does Article 
4 of the above mentioned Treaty refer solely to the habitual residence 
of the parents at the date of birth of the persons concerned, or does 
it also require the parents to have been habitually resident at the 
moment when the treaty came into force?” 

The Court was of the unanimous opinion, delivered on September 
15th, 1923, that the matter was within the competence of the League 
of Nations; and that Article 4 of the Minority Treaty referred only 
to the habitual residence of the parents at the date of birth of the 
persons concerned. 

The Council adopted the opinion of the Court and entrusted a rap- 
porteur to assist the Polish Government in the examination of the 
question of its application. Matters arising, not only under Article 4 
but also under Article 3 of the Minority Treaty as well as under 
Article 91 of the Treaty of Versailles, involving domicile and the cir- 
cumstances necessary for its establishment, were included among those 
to be examined; and negotiations between Poland and Germany were 
arranged by the rapporteur. These negotiations were opened in Feb- 
ruary, 1924, at Geneva, but no result having been reached by March, the 
Council recommended that the President of the Upper Silesian Arbitral 
Tribunal be invited to preside over further negotiations as a media- 
tor. The negotiations were undertaken in April, 1924, at Vienna, and 
a convention was drawn up, and signed on August 20th, 1924. The 
Council was notified of the exchange of ratifications in June, 1925, and 
the convention is in effect. 


(8) The Polish-Czechoslovak Boundary at Jaworzina. The ques- 
tion involved in this controversy was the delimitation of the frontier 
between Poland and Czechoslovakia, and whether it had been settled 
finally by a decision of the Conference of Ambassadors on July 28th, 
1920, more than three years prior to the submission of the controversy 
to the Council; and, if so, whether that decision should be applied in its 
entirety. The question arose under Articles 81 and 87 of the Treaty 
of Versailles, under which the Principal Allied and Associated Powers 
and other interested states were to determine the boundaries of the new 
Czechoslovak state, and under which they were also to determine the 
boundaries of Poland. The Supreme Council, acting as the repre- 
sentative of these Powers, was entrusted with the task of delimiting 
these frontiers. 


268 THE SENATE AND THE COURT 


The facts were as follows: On September 27th, 1919, the Supreme 
Council took a decision authorizing a plebiscite to be held in the dis- 
puted territory which involved the districts of Teschen, Orava and 
Spisz. The position of Jaworzina in the Spisz district was strategic, 
in that it commanded the only pass over the Carpathian mountains 
at this important point. The plebiscite was not held, and the parties 
agreed to accept the settlement of the Supreme Council. The Supreme 
Council entrusted the Conference of Ambassadors with this task, and 
the Conference, on July 28th, 1920, adopted a decision defining the 
boundary line. A delimitation commission was appointed, and em- 
powered to mark out the frontier and propose such modifications as 
it might consider justified. Poland raised objections to the frontier 
line decided upon by the Conference on July 28th, 1920, and this body, 
on December 2nd, 1921, formulated a further decision, granting the 
two countries the right to make modifications by friendly agreement 
but specifying that otherwise no such modification was to take place. 
No agreement having been reached, the Conference of Ambassadors 
after long and futile discussion referred the matter to the Council of 
the League in August, 1923, under paragraph 2 of Article 11 of the 
Covenant, and requested the Council to ask the opinion of the Court. 
The Council, accordingly, in September, 1923, forwarded the question to 
the Court with a request for an advisory opinion on the subject whether 
(1) the question of the delimitation of the Polish-Czechoslovak frontier 
was still open; (2) to what extent; (3) or was the decision final and 
only subject to minor modifications on the spot? 

The Court delivered its opinion on December 6th, 1923, and stated 
that the boundary had been finally established by the decision of the 
Conference of July 28th, 1920, but that the Delimitation Commission 
was authorized to propose further modifications. 

The Council, on December 17th, 1923, adopted the opinion of the 
Court and requested the Conference of Ambassadors to invite the 
Delimitation Commission to submit new proposals, in accordance with 
such opinion. The Delimitation Commission consequently sent its pro- 
posals to the Conference in February, 1924, and in March the Con- 
ference transmitted them to the Council, which body passed a resolution 
approving the frontier line and recommended an agreement between 
the parties for the regulation of frontier trafic. This having been 
drawn up and signed by Poland and Czechoslovakia on May 6th, 1924, 
the matter is concluded. 


(9) The Jugoslav-Albanian Frontier at Saint Naoum. The ques- 


ANNEX I 269 


tion involved in this dispute grew out of the boundary line laid down 
by the Conference of Ambassadors in its decision of November oth, 
1921, in which it had confirmed, with certain modifications, the frontier 
line of Albania, as established by the Treaty of London in 1913. 

The facts were as follows: The Conference appointed a Delimita- 
tion Commission to carry into effect its decision of November oth, 1921, 
at a time when Jugoslav forces had invaded and occupied Albanian 
territory and following a period of warfare between the two countries. 
This Delimitation Commission encountered the difficulties inherent in 
a situation wherein the parties had resorted to force to settle a dispute. 
Particular difficulties were encountered in the region of the Monastery 
of Saint Naoum, on the southern end of Lake Ochrida, for the fron- 
tier had, in this district, not been marked out in 1913, and in the 
absence of such decided boundary line both states claimed the Monastery 
under the terms of the Treaty of London. The Conference, on Decem- 
ber 6th, 1922, decided to acknowledge the claim of Albania. The 
Jugoslay Government requested a revision of this decision and the 
question was submitted for further examination to a committee, which 
failed to reach a conclusion, and also to the juridical committee of 
the Conference, which was equally unsuccessful. 

The Conference, therefore, finally decided to refer the matter to the 
League of Nations on June 5th, 1924. The questions involved were as 
follows: “Have the Principal Allied Powers, by the decision of the 
Conference of Ambassadors of December 6th, 1922, exhausted, in re- 
gard to the Serbo-Albanian frontier at the Monastery of Saint Naoum, 
the mission which was recognized as belonging to them by the Assembly 
of the League of Nations on October 2nd, 1921? Should the League 
of Nations consider that the Conference has not exhausted its mission, 
what solution should be adopted in regard to the question of the Serbo- 
Albanian frontier at Saint Naoum?”’ The Council, on June 17th, 1924, 
decided to request an opinion from the Court on the first question 
submitted by the Conference. 

The Court, in its opinion delivered on September 4th, 1924, stated 
that the Conference had, by its decision of December 6th, 1922, ex- 
hausted its powers, basing this opinion, in part, on the precedent estab- 
lished in the opinion concerning Jaworzina. Moreover, the Court held 
that the Conference had been justified in taking the position that the 
boundary at Saint Naoum had not been fixed in 1913, but that this 
boundary was now definitely fixed by the decision of December 6th, 
1922; and the application of Jugoslavia for a revision was stated to 
have no sound basis. 


270 THE SENATE AND THE COURT 


The Council, on October 3rd, 1924, adopted a report on the opinion 
of the Court, and transmitted it to the Conference. The Conference, 
in April 1925, communicated to the parties its decision with regard to 
the opinion of the Court, leaving unchanged its award of the Monastery 
to Albania. After receiving this decision, however, Albania and Jugo- 
slavia renewed direct negotiations with the result that an exchange of 
territories took place, a village south of the Monastery being allotted 
to Albania and the Monastery itself to Jugoslavia. The Conference 
of Ambassadors, in sanctioning this exchange, reversed its own deci- 
sion, the opinion of the Court and the recommendation of the Council; 
but it appears to have succeeded in finding a satisfactory solution of 
the matter. 


(10) The ‘Exchange of Greek and Turkish Populations: The 
question involved the right of certain Greek inhabitants of Constanti- 
nople to consider themselves established there, and the right of the 
Turkish government to evict such Greeks. The case arose under Ar- 
ticle 2 of the Convention concerning the Exchange of Greek and 
Turkish Populations, signed at Lausanne, January 30th, 1923. The Con- 
vention for the exchange of Greek and Turkish populations provides 
for a compulsory exchange of the Turkish nationals of Greek orthodox 
faith, established in Turkey, and of Greek nationals of the Moslem 
faith, established in Greece. Article 2 of the Convention exempts 
from such exchange (1) The Greek inhabitants of Constantinople; 
(2) the Moslem inhabitants of Western Thrace and specifies as fol- 
lows: “All Greeks who were already established before the 30th 
October, 1918, within the areas under the Prefecture of the City of 
Constantinople, as defined by the law of 1912, shall be considered as 
Greek inhabitants of Constantinople.” The supervision of the exchange 
of population was entrusted, under Article 11 of the Convention, to a 
Mixed Commission, four members of which represented the parties 
and three members, chosen by the Council of the League, represented 
neutral states. The Commission began its functions in September, 
1923. 

The facts were as follows: In August, 1924, a difference arose 
between the Greek and Turkish members of the Commission, con- 
cerning the meaning of the word “established” in Article 2 of the 
Convention and the evidence to be furnished by persons claiming to 
be so established, and exempt from exchange. The Turkish Govern- 
ment considered that the existing law, regarding the registration of all 
“established” persons, would have to be suspended or modified to con- 


ANNEX I 271 


form with the view of the Mixed Commission and that such modifica- 
tion was an infringement of the sovereign rights of Turkey. The 
Mixed Commission was unable to settle the dispute in a manner satis- 
factory to both the Greek and the Turkish members, and while negotia- 
tions were still in progress the Constantinople police on October 18th, 
and the five following days, proceeded to round up and to deport a 
number of Greeks who, according to the Turkish view, were subject not 
only to exchange, having arrived in Constantinople after October 3oth, 
1918, but whose time-limit had also expired. The Greek Government, 
holding the opinion that persons thus arrested were not subject to 
exchange, appealed to the Council under Article 11, paragraph 2 of 
the Covenant. The Council dealt with the complaint at an extraordi- 
nary meeting, and since both parties appeared willing to settle the 
question peacefully, suggested that the Mixed Commission hold a 
plenary meeting for such purpose, and that in case of legal difficulties 
the members of the Commission might either request the parties to lay 
the matter before the Court, or request an advisory opinion from the 
Court through the Council. The Commission adopted this latter course 
and forwarded to the Council its request for an advisory opinion from 
the Court; and the Council, on December 13th, 1924, submitted the 
following questions: “What meaning and scope should be attributed 
to the word ‘established’ in Article 2 of the Convention of Lausanne 
of January 30th, 1923, regarding the exchange of Greek and Turkish 
populations. * * * And what conditions must the persons who are de- 
scribed in Article 2 of the Convention of Lausanne under the name 
of ‘Greek inhabitants of Constantinople’ fulfil in order that they may 
be considered as ‘established’ under the terms of the Convention and 
exempt from compulsory exchange?” 

The Court, in its opinion, delivered on February 21st, 1925, stated 
that the word “established” used together with the date of October 
30th, 1918, was sufficient to enable the respective states to distinguish 
between those who are subject to exchange and those who are not; 
and that all Greek inhabitants of Constantinople residing within the 
boundaries of the city, as defined by the law of 1912, and having 
arrived there at a date previous to October 30th, 1918, and having had, 
prior to that date, the intention of residing there, are definitely exempt 
from exchange. . 

The opinion of the Court was noted by the Council and forwarded to 
the Mixed Commission on February 25th, 1925. In conformity with the 
terms of the opinion, an agreement was drawn up between Greece 
and Turkey, regulating the application of the interpretation of the 


272 THE SENATE AND THE COURT 


term “established,” the return of unjustly expelled individuals, the 
disposal of property of those rightfully expelled, and other such 
questions. 


(11) Polish Postal Service in Danzig: The question involved in 
this controversy concerned the right of the Polish Government to estab- 
lish, in the Free City of Danzig, a postal service with letter boxes 
bearing the Polish insignia; and whether the decisions of the High 
Commissioner in respect thereto were final and binding. The question 
arose under Article 104 of the Treaty of Versailles which provided 
that the subsequent agreement, to be negotiated by the Principal Allied 
Powers between Poland and the Free City of Danzig, should ensure to 
Poland, among other rights, the control and administration of postal 
telegraphic and telephone communications between Poland and the Port 
of Danzig. This right was confirmed subsequently in the Treaty of 
Paris, signed November goth, 1920, and in the Agreement of Warsaw, 
signed October 24th, 1921. Article 29 of the Treaty of Paris provides 
as follows: “to establish in the Port of Danzig a post, telegraph 
and telephone service communicating directly with Poland.” 

The controversy was the outcome of a series of disputes concerning 
the application of Article 29 of the Treaty of Paris, as to the meaning 
of “direct communications,” the right of Poland to obtain the necessary 
buildings, the sphere of activity of the Polish postal service and similar 
questions. A building on the Heveliusplatz was ultimately assigned to 
Poland, to be used for telegraph, telephone and postal service and the 
service was to begin in January, 1925. In preparation for this under- 
taking on January sth, 1925, letter boxes bearing Polish inscriptions 
were set up on the streets of Danzig. The Senate of Danzig protested 
to the High Commissioner that Polish postal service should be con- 
fined to the building on the Heveliusplatz and restricted to the trans- 
port of mail to and from the Polish authorities in Danzig. The Polish 
Commissioner-General in Danzig, on the contrary, asserted that Poland 
had a right to a complete postal service, including letter boxes and 
postmen, and claimed as a sphere of activity a section of the Free 
City, as marked on a plan annexed to a decision of High Commissioner 
Haking, concerning the ownership of railways... Poland claimed that 
this map indicated that part of the Free City, which answered the term 
“port of Danzig.” High Commissioner MacDonnell on February 2nd, 
1925, rendered a decision favorable to the Danzig contention, basing 
his view on a previous decision rendered by High Commissioner Haking 
on May 2sth, 1922, which had specified that the Polish postal service 


ANNEX I 273 


must go by direct route from the one place selected on the territory of 
Danzig, to the place or places selected in Poland. Poland appealed to 
the League for a revision of this decision, claiming that High Commis- 
sioner Haking had, on August 30th, 1922, interpreted his own previous 
decision of May 25th, 1922, which interpretation differed from the 
present one, applied by High-Commissioner MacDonnell. The Council 
on March 13th, 1925, decided to submit to the Court for an advisory 
opinion the following questions: “(1) Is there in force a decision of 
General Haking which decides * * * the points at issue regarding the 
Polish postal service, and, if so, does such decision prevent reconsidera- 
tion by the High Commissioner or the Council of all or any of the 
points in question? (2) If the questions, set out at (a) and (b) below 
have not been finally decided by General Haking: (a) Is the Polish 
postal service at the Port of Danzig restricted to operations which 
can be performed entirely within its premises in the Heveliusplatz, or 
is it entitled to set up letter boxes and collect and deliver postal 
matter outside those premises? (b) Is the use of the said service 
confined to Polish authorities and officials, or can it be used by the 
public ?” 

The Court, called in extraordinary session, met in May, 1925, and 
delivered an opinion according to which: (1) there is not in force any 
decision of High Commissioner Haking which decided the point at 
issue; (2) Poland is entitled to have a complete postal service within 
the port of Danzig, and is not restricted to operations in the building 
on the Heveliusplatz; and (3) the use of the service is open to the 
public. 

But the Court observed that the delimitation of the Port of Danzig 
was a necessary preliminary to the application of the above opinion. 
Poland and Danzig held contrasting views on the definition of the Port 
of Danzig, but the Court was not requested to give an opinion on this 
subject. Instead, the Council, on June 11th, 1925, appointed a committee 
of four experts to fix the limits of the port. The committee delimited the 
port to include part of the town of Danzig, as a species of economic 
Hinterland for the harbor. It has been left open to agreement between 
the parties how postal matters shall be delivered to Polish authorities 
outside the port, as delimited; and the committee has recommended 
that in case no such agreement can be reached, the whole boundary 
should be reconsidered. Danzig protested to the Council against the 
conclusions of the committee, but the Council having accepted such 
solution, there is now a duplication of postal service in the greater part 
of the Free) City. 


274 THE SENATE AND THE COURT 


tra. Request for an opinion in the matter of the Oecumenical 
Patriarch: This question involved an interpretation of the Conven- 
tion for the exchange of Greek and Turkish populations, signed at 
Lausanne, January 30th, 1925, and the question whether the institu- 
tion of the Patriarchate was exempt from the provisions of the Con- 
vention. 

The facts were as follows: The Mixed Commission for the Exchange 
of Greek and Turkish populations found that the Oecumenical Patri- 
arch, Monseigneur Constantin Araboglou, was subject to exchange in 
his capacity as a private individual, but it hesitated to take a decision 
regarding his expulsion as provided in the Convention, by reason of his 
position as Oecumenical Patriarch. The Turkish authorities hereupon 
requested the Patriarch to leave Constantinople and had him conveyed 
to the frontier. The Greek Government protested against this action 
to the League, under paragraph 2 of Article 11 of the Covenant, 
claiming that Turkey had violated a decision of the Mixed Commission. 
The Turkish Government, however, took the position that the expulsion 
of the Patriarch was a domestic matter and under the jurisdiction of 
the Mixed Commission, in accordance with which the Government 
claimed to have acted. Turkey, therefore, refused to appear before the 
Council. The Council, notwithstanding the refusal of Turkey, con- 
sidered the matter in March, 1925, and decided to request the Court 
to give an advisory opinion regarding the competence of the Council 
to deal with the appeal of Greece. The Court informed the parties 
concerned of the date fixed for the submission of their cases. To this 
communication the Turkish Government replied that, having denied the 
jurisdiction of the Council in this matter, it was also unable to accept 
the invitation of the Court. 

Before the matter was taken up by the Court, however, the Greek 
Government notified the Council that an agreement had been reached 
with the Turkish Government, and that, therefore, Greece wished to 
withdraw its appeal made in February, 1925. The Court was duly no- 
tified and the question was removed from its calendar. 


12, Advisory opinion requested in the matter of the interpreta- 
tion of paragraph 2 of Article 3 of the Treaty of Lausanne: 
This question involves an interpretation of Article 3 of paragraph 2 
of the Lausanne Treaty, which provides that: “The frontier between 
Turkey and Iraq shall be laid down in friendly arrangement to be con- 
cluded between Turkey and Great Britain within nine months. In the 
event of no agreement being reached between the two Governments 


ANNEX I 275 


within the time mentioned, the dispute shall be referred to the Council 
of the League of Nations.” Each of the parties placed an interpreta- 
tion favorable to its own interests on the words “frontier between Tur- 
key and Iraq,” Great Britain claiming that by a frontier line was meant 
one coinciding with the northern boundary of the Vilayet of Mosul, 
while Turkey asserted that the southern boundary of the Vilayet was 
implied. 

The facts were as follows: The friendly agreement, as provided for 
in the Lausanne Treaty, was not reached and, on request of Great 
Britain, the Council, in accordance with the Treaty of Lausanne, under- 
took to settle the matter in August, 1924. The parties recognized the 
competence of the Council to define the frontier (Turkey under Arti- 
cle 15 of the Covenant and Great Britain under the Lausanne Treaty) 
and, for this purpose, a committee of three members was appointed to 
study the situation on the spot, make a report and submit recommenda- 
tions. But when the Council, in September, 1925, reopened discussions 
with a view to basing a decision on the report of the Committee, it ap- 
peared that the difference in interpretation still existed and that Tur- 
key, while recognizing the competence of the Council to decide a 
frontier, did not recognize its competence to determine the allocation of 
Mosul. In other words, Turkey is prepared to recognize the boundary 
decided upon by the Council, if it coincides approximately with the 
southern boundary of the Mosul Vilayet. 

In connection with this disavowal by the Turkish Government there 
arose, however, the question of the right of Turkey, as an interested 
party, to take part in the vote of the Council. Turkey claimed such 
right under a declaration made by Lord Curzon during the Lausanne Con- 
ference, the Council however held that the right of Turkey to vote de- 
pended on the Article of the Covenant under which the matter was to be 
dealt with; for under Article 15 a unanimous vote excluding the votes 
of the parties is necessary, whereas under Article 11 a recommendation 
may be made by a majority. The Council, therefore, decided to submit 
the following question to the Court for an advisory opinion: (1) What 
is the character of the decision to be taken by the Council in virtue of 
Article 3, paragraph 2 of the Treaty of Lausanne? (2) Must the 
decision be unanimous or may it be taken by a majority? (3) May 
the representatives of the interested parties take part in the vote? 

The Court has not been requested to give an opinion on the question 
which has prevented agreement between Great Britain and Turkey, 
namely, whether the frontier between Turkey and Iraq is in any way 
bound by the northern or southern boundary of the Vilayet af Mosul, 


276 THE SENATE AND THE COURT 


or whether such frontier may be drawn at any place which the parties 
or the Council may decide upon. 

The Court began the consideration of the question on October 26th, 
1925. The British Government has a national on the Court and its 
representative has presented arguments to the effect that the nature 
of the decision which the Council is to make is arbitral, and may, there- 
fore, be taken by a majority, and consequently the parties may not take 
part in the vote. The Turkish Government has no national on the Court 
and has sent no representative to present arguments on its behalf, taking 
the position that the Council alone, under the Treaty, is authorized to 
deal with the matter and therefore Turkey will recognize only that body. 


Il, JUDGMENTS OF THE COURT - 


Judgment No. 1. The S. S. “Wimbledon.” The question involved 
in this case was whether Germany had the right, under the terms of 
the Treaty of Versailles, to refuse passage, through the Kiel Canal, 
to the S. S. “Wimbledon” laden with ammunition for Poland which state 
was then at war with Russia; or whether Germany might exercise the 
sovereign right of neutrality. 

The dispute arose under Article 380 of the Treaty of Versailles which 
provides that “the Kiel Canal and its approaches shall be maintained 
free and open to vessels of commerce and of war of all nations at 
peace with Germany on terms of entire equality.” Article 386 stipulates 
that in the event of any violation of the Articles relating to the Kiel 
Canal, as to their interpretation, any interested Power can appeal to 
the jurisdiction instituted for the purpose by the League of Nations. 
This provision established the jurisdiction of the Court. 

The facts were that on January 28th, 1919, during the war between 
Russia and Poland, the French Government chartered an English ves- 
sel, the S. S. “Wimbledon,” for the purpose of transporting ammunition 
to the aid of Poland. On March 2ist, 1921, the vessel arrived at the 
entrance to the Kiel Canal en route to Danzig. The German Govern- 
ment refused passage to the ship on the ground that it had aboard war 
materials for Poland; that the Treaty of Peace between Poland and 
Russia had not been ratified; and that the German Government had 
declared its neutrality ard published a decree prohibiting the transit of 
war materials destined for either country. The French Government 
protested that this was in violation of the Treaty as France and Poland 
were at peace with Germany. On April Ist, after a delay of eleven 
days, the vessel proceeded by another route, and the action of Ger- 


ANNEX I 277 


many became the subject of an active correspondence between -the 
Conference of Ambassadors, to which the French Government referred 
the matter, and Germany. On January 16th, 1923, the Principal Al- 
lied Powers, acting jointly, but not in the name of the Conference of 
Ambassadors, requested that the Court render a judgment (whether 
Germany accepted or rejected the jurisdiction of the Court) on the ques- 
tion whether the German authorities wrongfully refused on March alist, 
1921, free access to the Kiel Canal of the S. S. “Wimbledon”; and if so 
that the German Government shall make reparation. The French 
Government placed the loss sustained by the delay at 174,081.86 francs, 
together with interest at 6% from March 2oth, 1921, the day prior to 
the refusal of passage. The Polish Government made application to 
intervene which the Court granted on the ground that, as provided for 
in Article 63, the construction of a convention was a question which 
affected states other than those concerned as parties. Upon notifica- 
tion from the Court of Justice, the German Government accepted its 
jurisdiction, and, in accordance with Article 31 of the Court Statute, 
Germany designated M. Schiicking as the national judge to sit with 
the Court in the case. 

The Court, in its judgment rendered on August 7th, 1923, held that 
the Kiel Canal constituted an international waterway and was open with- 
out restriction to all countries at peace with Germany; and that the 
Treaty of Versailles constituted a limitation upon the right of neutral- 
ity. Germany was, therefore, ordered to pay to France a compensation 
amounting to 140,740.35 francs, with interest at 6% from the date of 
judgment. Three dissenting opinions were submitted, namely by M. 
Anzilotti, M. Huber and the German national judge, M. Schiicking. 
The German Government appears to have asked the guarantee com- 
mittee of the Reparation Commission for its consent to the payment 
of these damages, and received a reply in the negative, which was 
communicated to the Court on December 6th, 1923. 


Judgments No. 2 and 5. The Mavrommatis Concessions. The 
question concerned primarily concessions granted in Palestine to a 
Greek subject, by the former Turkish Government and their validity 
under the present British mandate; and secondarily the right of a 
state to appeal to the Court on behalf of one of its citizens, under 
the British Mandate for Palestine. 

The facts were as follows: M. Mavrommatis, a Greek subject, con- 
cluded, in 1914, with the Turkish authorities, a contract for the con- 
struction of electric railways and for the supply of drinking water in 


278 THE SENATE AND THE COURT 


Jerusalem. This contract was signed and in effect, when the war pre- 
vented its immediate execution. A similar contract for the city of 
Jaffa was signed in 1916, but, under the terms of a new Turkish law, 
needed an imperial firman, which confirmation it did not receive. When 
Palestine was placed under British Mandate after the war, M. Mavrom- 
matis, in 1921, addressed himself to the Colonial Office for recognition 
of his concessions. Meanwhile, however, the Colonial Office granted 
certain concessions to a M. Rutenberg, which partly coincided with 
those of M. Mavrommatis. In 1922, M. Mavrommatis requested pro- 
tection from his Government and, in 1923, after signature of the 
Lausanne Treaty the Greek Government undertook negotiations on the 
basis of the Protocol relating to Concessions annexed to such Treaty. 
This Protocol provides that concessions granted by the Ottoman Gov- 
ernment and entered into before October 29th, 1914, are maintained 
(Article 1); that the provisions are to be put into conformity with 
the new economic conditions (Article 4); and that beneficiaries under 
such contracts which they have not, on the date of the Protocol, begun 
to put into operation, cannot claim readaptation, but they may have 
the contracts dissolved on request made six months from the coming 
into force of the Treaty of Lausanne; in such case the concessionary 
is entitled to an indemnity (Article 6). As regards territories detached 
from Turkey, the state which acquires them assumes also the rights and 
obligations of Turkey toward the nationals of other states (Article 9). 

The negotiations between Greece and Great Britain continued for a 
year without result; finally, on May 13th, 1924, the Greek Government 
applied to the Court for a judgment, under Article 26 of the Palestine 
Mandate, which provides that any dispute between the mandatory and 
another member of the League of Nations relating to the interpreta- 
tion or the application of the provisions of the Mandate if it cannot 
be settled by negotiation, shall be submitted to the Permanent Court 
of International Justice. 

The Greek Government asserted that M. Mavrommatis had, since 
1920, been wrongfully refused recognition of his claims and that, there- 
fore, the British Government should make due reparations to M. 
Mavrommatis. The Greek application was transmitted to Great Britain, 
and the British Government, in reply, submitted a preliminary case, 
questioning the jurisdiction of the Court, basing its contention on the 
following facts: (1) The dispute concerned an individual and not 
a state; (2) diplomatic negotiations, which should be preliminary to 
submission of a case to the Court, had not been exhausted: (3) Article 
26 of the Mandate provided that the dispute must relate to the interpre- 


ANNEX I 279 


tation or application of the Mandate, with which provisions the pres- 
ent dispute did not appear to comply. ; 

The Court dealt first with the question concerning its own compe- 
tence and in its judgment delivered on August 30th, 1924, held as fol- 
lows: (1) While the dispute did primarily concern individual inter- 
ests, the Greek Government had taken up the case on behalf of its 
subject and, therefore, the dispute was one between Great Britain in 
its capacity of mandatory to Palestine, and the Greek Government. 
(2) In the opinion of the Court, the negotiations undertaken by Greece 
on behalf of M. Mavrommatis, in 1922 and 1923, had been in the nature 
of diplomatic negotiations. (3) As regards the application of the Man- 
date; the Court held that, under Article 11 of the Mandate Great 
Britain was to exercise its powers to provide for ownership and con- 
trol of the national resources of the country, subject to any interna- 
tional obligations accepted by Great Britain. The Jerusalem Conces- 
sions granted to M. Mavrommatis by the Turkish Government, before 
October 20th, 1914, were acknowledged, in effect, to constitute such 
international obligation under Article 1 of the Lausanne Concessions 
Protocol; but the Jaffa Concessions having been concluded after that 
date did not constitute such an obligation. Therefore, the Court held 
that it had jurisdiction over the merits of the case as concerned the 
Jerusalem Concessions but sustained the British objection concerning 
the Jaffa Concessions. Judges Finlay, Moore, Oda, de Bustamente and 
Pessoa dissented from this judgment. 

The Court, having reserved examination of the Mavrommatis Jeru- 
salem Concessions on the merits of the case, had the following claims 
before it: Great Britain asserted that the concessions of M. Mavrom- 
matis were invalid, and should not be recognized under the Concessions 
Protocol of Lausanne; however should the Court not uphold this con- 
tention the British Government claimed that (1) no breach of interna- 
tional obligation had been committed under Article 11 of the Mandate; 
(2) the contracts had not been in operation at the time of the signa- 
ture of the Concessions Protocol, as provided in Article 6 of that instru- 
ment, and, therefore, no claim could be made for the readaptation 
of the concession, under Article 4; (3) but M. Mavrommatis might 
under Article 6, request that the contracts be dissolved; (4) in such 
case, however, the indemnity claimed was unreasonable. Greece, in 
reply, claimed that: (1) The concessions had been put into operation 
and were therefore entitled to readaptation; (2) that if Great Britain 
were unwilling to allow readaptation, it must buy out the concessions ; 
(3) a compensation of £121,045, together with 6% interest from July 


280 THE SENATE AND THE COURT 


20th, 1923, to the date of the judgment should be paid to M. Mavrom- 
matis, as indemnity for the losses sustained; (4) a special indemnity 
should be paid, to be fixed under. Article 3 of the Lausanne Concessions 
Protocol, which Article provides for the settlement of such claims. 

The Court on August 30th, 1924, in its fifth judgment, held that: 
(1) The concessions were valid, British evidence to the contrary having 
proved insufficient. (2) In granting concessions to M. Rutenberg, 
which concessions partly overlapped those of M. Mavrommatis, Great 
Britain had acted contrary to its international obligations; but (3) since 
no expropriation of the Mavrommatis Concessions actually took place 
in favor of M. Rutenberg, M. Mavrommatis had suffered no loss 
which would justify a claim for compensation; and, finally, M. Mavrom- 
matis had full right to claim a readaptation of this contract, in accord- 
ance with Article 4 of the Lausanne Concessions Protocol. Both the 
British and the Greek national judges concurred in this decision, there 
being but one dissenting vote, that of M. Altamira. 


Judgments 3 and 4. Treaty of Neuilly, Article 179. These judg- 
ments concerned the interpretation of paragraph 4 of the Annex to 
Section IV of Part IX of the Treaty of Neuilly, concluded between 
the Allied Powers and Bulgaria. The paragraph in question provides 
that: “All property, rights and interests of Bulgarian nationals within 
the territory of any Allied or Associated Power, * * * may be charged 
by that Allied or Associated Power * * * with payment of amounts 
due in respect of claims by the nationals of that Allied or Associated 
Power with regard to their property, rights and interests, * * * and 
with payment of claims growing out of acts committed by the Bul- 
garian Government or by any Bulgarian authorities since October 11th, 
1915, and before that Allied or Associated Power entered into the 
war. The amount of such claims may be assessed by an arbitrator 
appointed by M. Gustav Ador.” * * * 

The facts were as follows: Under the terms of the above provision, 
the arbitrator was duly appointed; the Bulgarian Government claimed, 
however, that he had no competence as regards claims concerning acts 
committed outside of Bulgarian territory and claims concerning per- 
sonal damages. The Greek Government, desiring to enforce such claims, 
disagreed; and the arbitrator suggested that the governments submit 
the question to the Court. In March, 1924, an agreement was drawn 
up in which the parties requested the Court to determine the precise 
meaning of the disputed article, and particularly the following ques- 
tions: “(1) Does the text above quoted authorize claims for acts 


ANNEX I 281 


committed even outside Bulgarian territory as constituted before October 
1Ith, I915, in particular in districts occupied by Bulgaria after her 
entry into the war? (2) Does the text above quoted authorize claims 
for damages incurred by claimants not only as regards their property, 
rights and interests, but also as regards their person, arising out of 
ill-treatment, deportation, internment or other similar acts?” The Court 
was requested to sit as a Chamber of Summary Procedure. 

The Court, complying with the request, and sitting as a Chaniher of 
Summary Procedure, with Judges Loder, Weiss and Huber as members, 
delivered a judgment on September 12th, 1924. The judgment under- 
took to interpret the expression “acts committed,” and stated that such 
expression referred in this instance to acts contrary to the law of 
nations, and thus involving an obligation to make reparations, whether 
committed outside of Bulgarian territory or not; but that the repara- 
tion to be paid for such claims was included in the total fixed sum of 
reparations to be paid by Bulgaria. 

On November 27th, 1924, the Greek Government requested the Court 
to give an interpretation of its judgment of September 12th, particu- 
larly in regard to the existence of Bulgarian property in Greece which 
might be used to realize sums awarded by the arbitrator; the possibility 
of liquidating Bulgarian property in Greece for the purpose of realiz- 
ing such sums; and the right of Greece to request from the Repara- 
tion Commission a redistribution between the Allied Powers of the 
total sum of the reparations imposed upon Bulgaria. Bulgaria was 
notified of this request and communicated its observations to the 
Court. The Court sitting as a Chamber of Summary Procedure, deliv- 
ered its fifth judgment on March 26th, 1925, wherein it declined to fulfill 
the Greek request, on the ground that the request went beyond an inter- 
pretation of the questions involved in the judgment of September 12th. 


Judgment No. 6. German interests in Upper Silesia. The ques- 
tion concerned primarily the right of Poland to expropriate a nitrate 
factory and several large rural estates in Polish-Upper Silesia; and 
secondly, the jurisdiction of the Court. Such expropriations are gov- 
erned by Articles 6-22 of the Germano-Polish Convention with regard 
to Upper Silesia, signed at Geneva, May 15th, 1922. Under the pro- 
visions of this Convention, Poland may in conformity with Articles 92 
and 297 of the Treaty of Versailles expropriate industrial plants which 
on April 15th, 1922, were the property of German nationals, if the 
Upper Silesian Mixed Commission approves of such expropriation as a 
measure indispensable to the exploitation of the plant. Poland may 


282 THE SENATE AND THE COURT 


also expropriate the rural property of such German nationals who have 
no right to retain their domicile in Poland on condition that such 
estate exceeds 100 hectares. For purposes of such expropriations Ger- 
man nationals are defined by the Treaty of Versailles, and provisions are 
made for notification for the submission of disputes and questions to the 
Upper Silesian Mixed Tribunal; and finally, Article 23 provides for sub- 
mission of disputes relating to ‘the interpretation and application of the 
terms of the Convention, to the Permanent Court of International Justice. 

The facts were as follows: in accordance with the provisions of the 
Convention, Poland proceeded with certain expropriations. Included 
among these was the expropriation of a nitrate factory at Chorzow, 
which Poland held to be the property of the German State, and not of 
individual German nationals; but which is claimed to have been owned 
by German private persons. Notice was served also on several pro- 
prietors of large rural estates of the intention of the Polish government 
to expropriate their properties. 

The German Government, in May, 1925, submitted to the Court an 
appeal based on Article 23 of the Germano-Polish Convention, regarding 
the expropriation of the Chorzow nitrate factory and the threatened 
expropriation of large rural estates. It claimed that the action of 
Poland in neither case was in conformity with the Germano-Polish 
Convention. Poland was notified of the appeal and submitted a counter 
case questioning the jurisdiction of the Court, in that (1) the expro- 
priation of the Chorzow factory falls under Article 256 of the Versailles 
Treaty governing property of the German State, and not under the 
Articles of the Germano-Polish Convention which are subject to the 
jurisdiction of the Court; (2) the appeal concerning agricultural 
estates was premature, since the Polish Government was still investigat- 
ing the German claims in this matter. 

The Court, on August 25th, 1925, dealt with the preliminary ques- 
tion concerning its jurisdiction and decided as follows: (1) The 
question relating to the Chorzow factory implied whether or not 
Poland had acted in conformity with the Articles of the Germano- 
Polish Convention relating to expropriation; these articles are subject 
to the jurisdiction of the Court. (2) In the matter of the rural es- 
tates, notice of intended expropriation furnished sufficient ground for 
Germany to desire a final determination by the Court without waiting 
for the result of the investigation by the Polish Government. The 
Court, therefore, reserved jurisdiction over the case on its merits, the 
only dissenting opinion being that of the Polish national judge; and the 
final judgment is pending, 


ANNEX II 
STATUTE 


FOR THE PERMANENT COURT OF INTERNATIONAL JUSTICE PROVIDED 
FOR BY ARTICLE I4 OF THE COVENANT OF 
THE LEAGUE OF NATIONS 


Art. 1. A Permanent Court of International Justice is hereby 
established in accordance with Article 14 of the Covenant of the 
League of Nations. This Court shall be in addition to the Court of 
Arbitration organized by the Conventions of The Hague of 1899 and 
1907, and to the special Tribunals of Arbitration to which States are 
always at liberty to submit their disputes for settlement. 


CHAPTER I 
Organization of the Court 


Art, 2. The Permanent Court of International Justice shall be com- 
posed of a body of independent judges, elected regardless of their 
nationality from among persons of high moral character, who possess 
the qualifications required in their respective countries for appointment 
to the highest judicial offices, or are juris-consults of recognized compe- 
tence in international law. 

Art. 3. The Court shall consist of fifteen members: eleven judges 
and four deputy-judges. The number of judges and deputy-judges may 
hereafter be increased by the Assembly, upon the proposal of the 
Council of the League of Nations, to a total of fifteen judges and six 
deputy-judges. 

Art. 4. The members of the Court shall be elected by the Assembly 
and by the Council from a list of persons nominated by the national 
groups in the Court of Arbitration, in accordance with the following 
provisions. 

In the case of Members of the League of Nations not represented in 
the Permanent Court of Arbitration, the list of candidates shall be 
drawn up by national groups appointed for this purpose by their 

283 


284 THE SENATE AND THE COURT 


Governments under the same conditions as those prescribed for mem- 
bers of the Permanent Court of Arbitration by Article 44 of the Con- 
vention of The Hague of 1907 for the pacific settlement of international 
disputes. 

Art. 5. At least three months before the date of the election, the 
Secretary-General of the League of Nations shall address a written 
request to the Members of the Court of Arbitration belonging to the 
States mentioned in the Annex to the Covenant or to the States which 
join the League subsequently, and to the persons appointed under para- 
graph 2 of Article 4, inviting them to undertake, within a given time, 
by national groups, the nomination of persons in a position to accept 
the duties of a member of the Court. 

No group may nominate more than four persons, not more than two 
of whom shall be of their own nationality. In no case must the num- 
ber of candidates nominated be more than double the number of seats 
to be filled. 

Art. 6. Before making these nominations, each national group is 
recommended to consult its Highest Court of Justice, its Legal Facul- 
ties and Schools of Law, and its National Academies and national 
sections of International Academies devoted to the study of Law. 

Art. 7. The Secretary-General of the League of Nations shall pre- 
pare a list in alphabetical order of all the persons thus nominated. 
Save as provided in Article 12, paragraph 2, these shall be the only 
persons eligible for appointment. 

The Secretary-General shall submit this list to the Assembly and to 
the Council. 

Art. 8. The Assembly and the Council shall proceed independently 
of one another to elect, firstly the judges, then the deputy-judges. 

Art. 9. At every election, the electors shall bear in mind that not 
only should all the persons appointed as members of the Court possess 
the qualifications required, but the whole body also should represent 
the main forms of civilization and the principal legal systems of the 
world. 

Arr. 10. Those candidates who obtain an absolute majority of votes 
in the Assembly and in the Council shall be considered as elected. 

In the event of more than one national of the same Member of the 
League being elected by the votes of both the Assembly and the Council, 
the eldest of these only shall be considered as elected. 

Art. 11. If, after the first meeting held for the purpose of the 
election, one or more seats remain to be filled, a second and, if neces- 


sary, a third meeting shall take place. 


ANNEX II 285 


Art. 12. If, after the third meeting, one or more seats still remain 
unfilled, a joint conference consisting of six members, three appointed 
by the Assembly and three by the Council, may be formed, at any 
time, at the request of either the Assembly or the Council, for the 
purpose of choosing one name for each seat still vacant, to submit to 
the Assembly and the Council for their respective acceptance. 

If the Conference is unanimously agreed upon any person who fulfils 
the required conditions, he may be included in its list, even though he 
was not included in the list of nominations referred to in Articles 4 
and 5. 

If the joint conference is satisfied that it will not be successful in 
procuring an election, those members of the Court who have already 
been appointed shall, within a period to be fixed by the Council, pro- 
ceed to fill the vacant seats by selection from among those candidates 
who have obtained votes either in the Assembly or in the Council. 

In the event of an equality of votes among the judges, the eldest 
judge shall have a casting vote. 

Art. 13. The members of the Court shall be elected for nine years. 

They may be re-elected. 

They shall continue to discharge their duties until their places have 
been filled. Though replaced, they shall finish any cases which they 
may have begun. 

Art. 14. Vacancies which may occur shall be filled by the same 
method as that laid down for the first election, A member of the 
Court elected to replace a member whose period of appointment had 
not expired will hold the appointment for the remainder of his pred- 
ecessor’s term. 

Art. 15. Deputy-judges shall be called upon to sit in the order laid 
down in a list. 

This list shall be prepared by the Court and shall have regard firstly 
to priority of election and secondly to age. 

Arr. 16. The ordinary Members of the Court may not exercise any 
political or administrative function. This provision does not apply to 
the deputy-judges except when performing their duties on the Court. 

Any doubt on this point is settled by the decision of the Court. 

Arr. 17. No Member of the Court can act as agent, counsel or 
advocate in any case of an international nature. This provision only 
applies to the deputy-judges as regards cases in which they are called 
upon to exercise their functions on the Court. 

No Member may participate in the decision of any case in which he 
has previously taken an active part, as agent, counsel or advocate for 


286 THE SENATE AND THE COURT 


one of the contesting parties, or as a Member of a national or in- 
ternational Court, or of a Commission of inquiry, or in any other ca- 
pacity. 

Any doubt on this point is settled by the decision of the Court. 

Art. 18. A member of the Court cannot be dismissed unless, in the 
unanimous opinion of the other members, he has ceased to fulfil the 
required conditions. 

Formal notification thereof shall be made to the Secretary-General of 
the League of Nations, by the Registrar. 

This notification makes the place vacant. 

Art. 19. The members of the Court, when engaged on the business 
of the Court, shall enjoy diplomatic privileges and immunities, 

Art. 20. Every member of the Court shall, before taking up his 
duties, make a solemn declaration in open Court that he will exercise 
his powers impartially and conscientiously. 

Art. 21. The Court shall elect its President and Vice-President for 
three years; they may be re-elected. 

It shall appoint its Registrar. 

The duties of Registrar of the Court shall not be deemed incom- 
patible with those of Secretary-General of the Permanent Court of 
Arbitration. 

Art. 22. The seat of the Court shall be established at The Hague. 

The President and Registrar shall reside at the seat of the Court. 

Art, 23. A session of the Court shall be held every year. 

Unless otherwise provided by rules of Court, this session shall begin 
on the 15th of June, and shall continue for so long as may be deemed 
necessary to finish the cases on the list. 

The President may summon an extraordinary session of the Court 
whenever necessary. 

Art. 24. If, for some special reason, a member of the Court con- 
siders that he should not take part in the decision of a particular case, 
he shall so inform the President. 

If the President considers that for some special reason one of the 
members of the Court should not sit on a particular case, he shall 
give him notice accordingly. 

If in any such case the member of the Court and the President dis- 
agree, the matter shall be settled by the decision of the Court. 

Art. 25. The full Court shall sit except when it is expressly pro- 


vided otherwise. 
If eleven judges cannot be present, the number shall be made up by 


calling on deputy-judges to sit. 


ANNEX II 287 


If, however, eleven judges are not available, a quorum of nine judges 
shall suffice to constitute the Court. 

Art. 26. Labor cases, particularly cases referred to in Part XIII 
(Labor) of the Treaty of Versailles and the corresponding portion of 
the other Treaties of Peace, shall be heard and determined by the 
Court under the following conditions: 

The Court will appoint every three years a special chamber of five 
judges, selected so far as possible with due regard to the provisions 
of Article 9. In addition, two judges shall be selected for the purpose 
of replacing a judge who finds it impossible to sit. If the parties so 
demand, cases will be heard and determined by this chamber. In the 
absence of any such demand, the Court will sit with the number of 
judges provided for in Article 25. On all occasions the judges will be 
assisted by four technical assessors sitting with them, but without the 
right to vote, and chosen with a view to insuring a just representation 
of the competing interests. 

If there is a national of one only of the parties sitting as a judge in 
the chamber referred to in the preceding paragraph, the President will 
invite one of the other judges to retire in favor of a judge chosen by 
the other party in accordance with Article 31. 

The technical assesssors shall be chosen for each particular case in 
accordance with rules of procedure under Article 30 from a list of 
“Assessors for Labor cases” composed of two persons nominated by 
each Member of the League of Nations and an equivalent number 
nominated by the Governing Body of the Labor Office. The Governing 
Body will nominate, as to one half, representatives of the workers, and 
as to one half, representatives of employers from the list referred to 
in Article 412 of the Treaty of Versailles and the corresponding Ar- 
ticles of the other Treaties of Peace. 

In Labor cases the International Labor Office shall be at liberty to 
furnish the Court with all relevant information, and for this purpose 
the Director of that Office shall receive copies of all the written 
proceedings. 

Art. 27. Cases relating to transit and communications, particularly 
cases referred to in Part XII (Ports, Waterways and Railways) of the 
Treaty of Versailles and the corresponding portions of the other Treaties 
of Peace shall be heard and determined by the Court under the follow- 
ing conditions: 

The Court will appoint every three years a special chamber of five 
judges, selected so far as possible with due regard to the provisions of 
Article 9. In addition, two judges shall be selected for the purpose of 


288 THE SENATE AND THE COURT 


replacing a judge who finds it impossible to sit. If the parties so de- 
mand, cases will be heard and determined by this chamber. In the 
absence of any such demand, the Court will sit with the number of 
judges provided for in Article 25. When desired by the parties or 
decided by the Court, the judges will be assisted by four technical 
assessors sitting with them, but without the right to vote. 

If there is a national of one only of the parties sitting as a judge in 
the chamber referred to in the preceding paragraph, the President will 
invite one of the other judges to retire in favor of a judge chosen by 
the other party in accordance with Article 31. 

The technical assessors shall be chosen for each particular case in 
accordance with rules of procedure under Article 30 from a list of 
“Assessors for Transit and Communications cases” composed of two 
persons nominated by each Member of the League of Nations. 

Art. 28. The special chambers provided for in Articles 26 and 27 
may, with the consent of the parties to the dispute, sit elsewhere than 
at The Hague. 

ArT. 29. With a view to the speedy despatch of business, the Court 
shall form annually a chamber ‘composed of three judges who, at the 
request of the contesting parties, may hear and determine cases by 
summary procedure. 

Art. 30. The Court shall frame rules for regulating its procedure. 
In particular, it shall lay down rules for summary procedure. 

Art. 31. Judges of the nationality of each contesting party shall 
retain their right to sit in the case before the Court. 

If the Court includes upon the Bench a judge of the nationality of 
one of the parties only, the other party may select from among the 
deputy-judges a judge of its nationality, if there be one. If there should 
not be one, the party may choose a judge, preferably from among those 
persons who have been nominated as candidates as provided in Articles 
4 and 5. 

If the Court includes upon the Bench no judge of the nationality of 
the contesting parties, each of these may proceed to select or choose a 
judge as provided in the preceding paragraph. 

Should there be several parties in the same interest, they shall, for 
the purpose of the preceding provisions, be reckoned as one party only. 
Any doubt upon this point is settled by the decision of the Court. 

Judges selected or chosen as laid down in paragraphs 2 and 3 of 
this Article shall fulfil the conditions required by Articles 2, 16, 17, 20, 
24 of this Statute. They shall take part in the decision on an equal 
footing with their colleagues. 


ANNEX II 289 


Art. 32. The judges shall receive an annual indemnity to be deter- 
mined by the Assembly of the League of Nations upon the proposal 
of the Council. This indemnity must not be decreased during the 
period of a judge’s appointment. 

The President shall receive a special grant for his period of office, 
to be fixed in the same way. 

The Vice-Presidents, judges and deputy-judges, shall receive a grant 
for the actual performance of their duties, to be fixed in the same way. 

Traveling expenses incurred in the performance of their duties shall 
be refunded to judges and deputy-judges who do not reside at the seat 
of the Court. 

Grants due to judges selected or chosen as provided in Article 31 
shall be determined in the same way. 

The salary of the Registrar shall be decided by the Council upon 
the proposal of the Court. 

The Assembly of the League of Nations shall lay down, on the 
proposal of the Council, a special regulation fixing the conditions under 
which retiring pensions may be given to the personnel of the Court. 

Art, 33. The expenses of the Court shall be borne by the League of 
Nations, in such a manner as shall be decided by the Assembly upon 
the proposal of the Council. 


CHAPTER II 
Competence of the Court 


Art. 34. Only States or Members of the League of Nations can be 
parties in cases before the Court. 

Art. 35. The Court shall be open to the Members of the League 
and also to States mentioned in the Annex to the Covenant. 

The conditions under which the Court shall be open to other States 
shall, subject to the special provisions contained in treaties in force, 
be laid down by the Council, but in no case shall such provisions place 
the parties in a position of inequality before the Court. 

When a State which is not a Member of the League of Nations is a 
party to a dispute, the Court will fix the amount which that party is 
to contribute toward the expenses of the Court. | 

Art. 36. The jurisdiction of the Court comprises all cases which 
the parties refer to it and all matters specially provided for in Treaties 
and Conventions in force. 

The Members of the League of Nations and the States mentioned in 


290 THE SENATE AND THE COURT 


the Annex to the Covenant may, either when signing or ratifying the 
protocol to which the present Statute is adjoined, or at a later mo- 
ment, declare that they recognize as compulsory ipso facto and with- 
out special agreement, in relation to any other Member or State 
accepting the same obligation, the jurisdiction of the Court in all or 
any of the classes of legal disputes concerning: 

(a.) The interpretation of a Treaty. 

(b.) Any question of International Law. 

(c.) The existence of any fact which, if established, would consti- 

tute a breach of an international obligation. 

(d.) The nature or extent of the reparation to be made for the 

breach of an international obligation. 

The declaration referred to above may be made unconditionally or on 
condition of reciprocity on the part of several or certain Members or 
States, or for a certain time. 

In the event of a dispute as to whether the Court has jurisdiction, 
the matter shall be settled by the decision of the Court. 

Art. 37. When a treaty or convention in force provides for the ref- 
erence of a matter to a tribunal to be instituted by the League of 
Nations, the Court will be such tribunal. 

Art. 38. The Court shall apply: 

I. International conventions, whether general or particular, estab- 
lishing rules expressly recognized by the contesting States; 

2. International custom, as evidence of a general practice accepted 
as law; 

3. The general principles of law recognized by civilized nations; 

4. Subject to the provisions of Article 59, judicial decisions and the 
teachings of the most highly qualified publicists of the various na- 
tions, as subsidiary means for the determination of rules of law. 

This provision shall not prejudice the power of the Court to decide a 
case ex aequo et bono, if the parties agree thereto. 


CHAPTER III 
Procedure 


Art. 39. The official languages of the Court shall be French and 
English. If the parties agree that the case shall be conducted in 
French, the judgment will be delivered in French. If the parties agrea 
that the case shall be conducted in English, the judgment will be de- 
livered in English. 


ANNEX II 291 


In the absence of an agreement as to which language shall be em- 
ployed, each party may, in the pleadings, use the language which it 
prefers; the decision of the Court will be given in French and English. 
In this case the Court will at the same time determine which of the 
two texts shall be considered as authoritative. 

The Court may, at the request of the parties, authorize a language 
other than French or English to be used. 

Art, 40. Cases are brought before the Court, as the case may be, 
either by the notification of the special agreement or by a written 
application addressed to the Registrar. In either case the subject of 
the dispute and the contesting parties must be indicated. 

The Registrar shall forthwith communicate the application to all 
concerned, 

He shall also notify the Members of the League of Nations through 
the Secretary-General. 

Art. 41. The Court shall have the power to indicate, if it con- 
siders that circumstances so require, any provisional measures 
which ought to be taken to reserve the respective rights of either 
party. 

Pending the final decision, notice of the measures suggested shall 
forthwith be given to the parties and the Council. 

Art. 42. The parties shall be represented by Agents. 

They may have the assistance of Counsel or Advocates before the 
Court. 

Art. 43. The procedure shall consist of two parts: written and oral. 

The written proceedings shall consist of the communication to the 
judges and to the parties of cases, counter-cases and, if necessary, re- 
plies; also all papers and documents in support. 

These communications shall be made through the Registrar, in the 
order and within the time fixed by the Court. 

A certified copy of every document produced by one party shall be 
communicated to the other party. 

The oral proceedings shall consist of the hearing by the Court of 
witnesses, experts, agents, counsel and advocates. 

Art. 44. For the service of all notices upon persons other than the 
agents, counsel and advocates, the Court shall apply direct to the 
Government of the State upon whose territory the notice has to be 
served. 

The same provision shall apply whenever steps are to be taken to 
procure evidence on the spot. 

Art. 45. The hearing shall be under the control of the President or, 


292 THE SENATE AND THE COURT 


in his absence, of the Vice-President; if both are absent, the senior 
judge shall preside. 

Art. 46. The hearing in Court shall be public, unless the Court 
shall decide otherwise, or unless the parties demand that the public be 
not admitted. 

Art. 47. Minutes shall be made at each hearing, and signed by the 
Registrar and the President. 

' These minutes shall be the only authentic record. 

Art. 48. The Court shall make orders for the conduct of the case, 
shall decide the form and time in which each party must conclude its 
arguments, and make all arrangements connected with the taking of 
evidence. 

Art. 49. The Court may, even before the hearing begins, call upon 
the agents to produce any document or to supply any explanations. 
Formal note shall be taken of any refusal. 

Art. 50. The Court may, at any time, intrust any individual, body, 
bureau, commission or other organization that it may select, with the 
task of carrying out an inquiry or giving an expert opinion. 

Art. 51. During the hearing any relevant questions are to be put to 
the witnesses and experts under the conditions laid down by the Court 
in the rules of procedure referred to in Article 30. 

Art. 52. After the Court has received the proofs and evidence within 
the time specified for the purpose, it may refuse to accept any further 
oral or written evidence that one party may desire to present unless the 
other side consents. 

Art. 53. Whenever one of the parties shall not appear before the 
Court, or shall fail to defend his case, the other party may call upon 
the Court to decide in favor of his claim. 

The Court must, before doing so, satisfy itself, not only that it has 
jurisdiction in accordance with Articles 36 and 37, but also that the 
claim is well founded in fact and law. 

Art. 54. When, subject to the control of the Court, the agents, 
advocates and counsel have completed their presentation of the case, 
the President shall declare the hearing closed. 

The Court shall withdraw to consider the judgment. 

The deliberations of the Court shall take place in private and remain 
secret. 

Art. 55. All questions shall be decided by a majority of the judges 
present at the hearing. 

In the event of an equality of votes, the President or his deputy shall 
have a casting vote. 


ANNEX II 293 


Art, 56. The judgment shall state the reasons on which it is based. 

It shall contain the names of the judges who have taken part in the 
decision. 

Art. 57. If the judgment does not represent in whole or in part 
the unanimous opinion of the judges, dissenting judges are entitled to 
deliver a separate opinion. 

Arr. 58. The judgment shall be signed by the President and by the 
Registrar. It shall be read in open Court, due notice having been given 
to the agents. 

Art. 59. The decision of the Court has no binding force except be- 
tween the parties and in respect of that particular case. 

Art, 60. The judgment is final and without appeal. In the event of 
dispute as to the meaning or scope of the judgment, the Court shall 
construe it upon the request of any party. 

Art. 61. An application for revision of a judgment can be made 
only when it is based upon the discovery of some fact of such a nature 
as to be a decisive factor, which fact was, when the judgment was 
given, unknown to the Court and also to the party claiming revision, 
always provided that such ignorance was not due to negligence. 

The proceedings for revision will be opened by a judgment of the 
Court expressly recording the existence of the new fact, recognizing 
that it has such a character as to lay the case open to revision, and 
declaring the application admissible on this ground. 

The Court may require previous compliance with the terms of the 
judgment before it admits proceedings in revision. 

The application for revision must be made at latest within six months 
of the discovery of the new fact. 

No application for revision may be made after the lapse of ten years 
from the date of the sentence. 

Art. 62. Should a State consider that it has an interest of a legal 
nature which may be affected by the decision in the case, it may sub- 
mit a request to the Court to be permitted to intervene as a third party. 

It will be for the Court to decide upon this request. 

Art. 63. Whenever the construction of a convention to which States 
other than those concerned in the case are parties is in question, the 
Registrar shall notify all such States forthwith. 

Every State so notified has the right to intervene in the proceedings ; 
but if it uses this right, the construction given by the judgment will be 
equally binding upon it. 

Art. 64. Unless otherwise decided by the Court, each party shall 
bear its own costs. 


ANNEX III 
RULES OF CouRT 


Preamble 


The Court, 
By virtue of Article 30 of its Statute, 
Adopts the present Rules: 


CHAPTER I. The Court 
HEADING I. Constitution of Court 
SECTION A. Judges and Assessors. 


Art. I. Subject to the provisions of Article 14 of the Statute, the 
term of office of judges and deputy-judges shall commence on January 
Ist of the year following their election. 

Art. 2. Judges and deputy-judges elected at an earlier session of the 
Assembly and of the Council of the League of Nations shall take pre- 
cedence respectively over judges and deputy-judges elected at a subse- 
quent session. Judges and deputy-judges elected during the same ses- 
sion shall take precedence according to age. Judges shall take 
precedence over deputy-judges. 

National judges chosen from outside the Court, under the terms of 
Article 31 of the Statute, shall take precedence after deputy-judges in 
order of age. 

The list of deputy-judges shall be prepared in accordance with these 
principles. 

The Vice-President shall take his seat on the right of the President. 
The other Members of the Court shall take their seats to the right and 
left of the President in the order laid down above. 

Art. 3. Deputy-judges whose presence is necessary shall be sum- 
moned in the order laid down in the list referred to in the preceding 
Article, that is to say, each of them will be summoned in rotation 
throughout the list. 

Should a deputy-judge be so far from the seat of the Court that, in 

294 


ANNEX III 295 


the opinion of the President, a summons would not reach him in suff- 
cient time, the deputy-judge next on the list shall be summoned; 
nevertheless, the judge to whom the summons should have been ad- 
dressed shall be called upon, if possible, on the next occasion that the 
presence of a deputy-judge is required. 

A deputy-judge who has begun a case shall be summoned again, if 
necessary out of his turn, in order to continue to sit in the case until 
it is finished. 

Should a deputy-judge be summoned to take his seat in a particular 
case as a national judge, under the terms of Article 31 of the Statute, 
such summons shall not be regarded as coming within the terms of the 
present Article. 

Art. 4. In cases in which one or more parties are entitled to choose 
a judge ad hoc of their nationality, the full Court may sit with a num- 
ber of judges exceeding eleven. 

When the Court has satisfied itself, in accordance with Article 31 of 
the Statute, that there are several parties in the same interest and 
that none of them has a judge of its nationality upon the bench, the 
Court shall invite them, within a period to be fixed by the Court, to 
select by common agreement a deputy judge of the nationality of one 
of the parties, should there be one; or, should there not be one, a 
judge chosen in accordance with the principles of the above-mentioned 
Article. 

Should the parties have failed to notify the Court of their selection 
or choice when the time limit expires, they shall be regarded as hav- 
ing renounced the right conferred upon them by Article 31. 

Art, 5. Before entering upon his duties, each member of the Court 
or judge summoned to complete the Court, under the terms of Article 
31 of the Statute, shall make the following solemn declaration in 
accordance with Article 20 of the Statute: 

“T solemnly declare that I will exercise all my powers and duties as 
a judge honorably and faithfully, impartially and conscientiously.” 

A special public sitting of the Court may, if necessary, be convened 
for this purpose. 

At the public inaugural sitting held after a new election of the whole 
Court the required declaration shall be made first by the President, 
secondly by the Vice-President, and then by the remaining judges in 
the order laid down in Article 2. 

Art. 6. For the purpose of applying Article 18 of the Statute, the 
President, or if necessary the Vice-President, shall convene the judges 
and deputy-judges. The member affected shall be allowed to furnish 


296 THE SENATE AND THE COURT 


explanations. When he has done so the question shall be discussed and 
a vote shall be taken, the member in question not being present. If 
the members present are unanimously agreed, the Registrar shall issue 
the notification prescribed in the above-mentioned Article. 

Art. 7. The President shall take steps to obtain all information 
which might be helpful to the Court in selecting technical assessors in 
each case. With regard to the questions referred to in Article 26 of 
the Statute, he shall, in particular, consult the Governing Body of the 
International Labour Office. 

The asessors shall be appointed by an absolute majority of votes, 
either by the Court or by the special Chamber which has to deal with 
the case in question. 

Art. 8 Assessors shall make the following solemn declaration at 
the first sitting of the Court at which they are present: 

“T solemnly declare that I will exercise my duties and powers as an 
assessor honorably and faithfully, impartially and conscientiously, and 
that I will scrupulously observe all the provisions of the Statute and 
of the Rules of Court.” 


SECTION B. The Presidency. 


Art. 9. The election of the President and Vice-President shall take 
place at the end of the ordinary session immediately before the normal 
termination of the period of office of the retiring President and Vice- 
President. 

After a new election of the whole Court, the election of the Presi- 
dent and Vice-President shall take place at the commencement of the 
following session. The President and Vice-President elected in these 
circumstances shall take up their duties on the day of their election. 
They shall remain in office until the end of the second year after the 
year of their election. 

Should the President or the Vice-President cease to belong to the 
Court before the expiration of their normal term of office, an election 
shall be held for the purpose of appointing a substitute for the unex- 
pired portion of their term of office. If necessary, an extraordinary 
session of the Court may be convened for this purpose. 

The elections referred to in the present Article shall take place by 
secret ballot. The candidate obtaining an absolute majority of votes 
shall be declared elected. 

Arr. 10. The President shall direct the work and administration of 
the Court; he shall preside at the meetings of the full Court. 

Arr. 11. The Vice-President shall take the place of the President, 


ANNEX III 297 


should the latter be unable to be present, or, should he cease to hold 
office, until the new President has been appointed by the Court. 

Art. 12. The President shall reside within a radius of ten kilo- 
metres from the Peace Palace at the Hague. 

The main annual vacation of the President shall not exceed three 
months. 

Art. 13. After a new election of the whole Court and until such 
time as the President and Vice-President have been elected, the judge 
who takes precedence according to the order laid down in Article 2, 
shall perform the duties of President. 

The same principle shall be applied should both the President and 
the Vice-President be unable to be present, or should both appointments 
be vacant at the same time. 


SECTION c. The Chambers. 


Art. 14. The members of the Chambers constituted by virtue of 
Articles 26, 27 and 29 of the Statute shall be appointed at a meeting 
of the full Court by an absolute majority of votes, regard being had 
for the purposes of this selection to any preference expressed by the 
judges, so far as the provisions of Article 9 of the Statute permit. 

The substitutes mentioned in Articles 26 and 27 of the Statute shall 
be appointed in the same manner. Two judges shall be chosen to re- 
place any member of the Chamber for summary procedure who may be 
unable to sit. 

The election shall take place at the end of the ordinary session of 
the Court, and the period of appointment of the members elected shall 
commence on January Ist of the following year. 

Nevertheless, after a new election of the whole Court the election 
shall take place at the beginning of the following session. The period 
of appointment shall commence on the date of election and shall termi- 
nate, in the case of the Chamber referred to in Article 29 of the Statute, 
at the end of the same year and, in the case of the Chambers referred 
to in Articles 26 and 27 of the Statute, at the end of the second year 
after the year of election. 

The Presidents of the Chambers shall be appointed at a sitting of 
the full Court. Nevertheless, the President of the Court shall, ex 
officio, preside over any Chamber of which he may be elected a member ; 
similarly, the Vice-President of the Court shall, ex officio, preside over 
any Chamber of which he may be elected a member, provided that the 


President is not also a member. 


298 THE SENATE AND THE COURT 


Art. 15. The special Chambers for labour cases and for communi- 
cations and transit cases may not sit with a greater number than five 
judges. 

Except as provided in the second paragraph of the preceding Article, 
the composition of the Chamber for summary procedure may not be 
altered. 

Art. 16. Deputy-judges shall not be summoned to complete the special 
Chambers or the Chamber for summary procedure, unless sufficient 
judges are not available to complete the number required. 


SECTION D. The Registry. - 


Art. 17. The Court shall select its Registrar from amongst candi- 
dates proposed by members of the Court. 

The election shall be by secret ballot and by a majority of votes. In 
the event of an equality of votes, the President shall have a casting vote. 

The Registrar shall be elected for a term of seven years commencing 
on January Ist of the year following that in which the election takes 
place. He may be re-elected. 

Should the Registrar cease to hold his office before the expiration 
of the term above-mentioned, an election shall be held for the purpose 
of appointing a successor. 

Art. 18. Before taking up his duties, the Registrar shall make the 
following declaration at a meeting of the full Court: 

“I solemnly declare that I will perform the duties conferred upon me 
as Registrar of the Permanent Court of International Justice in all 
loyalty, discretion and good conscience.” 

The other members of the Registry shall make a similar declaration 
before the President, the Registrar being present. 

Art. 19. The Registrar shall reside within a radius of ten kilometres 
from the Peace Palace at The Hague. 

The main annual vacation of the Registrar shall not exceed two 
months. 

Art. 20. The staff of the Registry shall be appointed by the Court 
on proposals submitted by the Registrar. 

Art. 21. The Regulations for the Staff of the Registry shall be 
adopted by the President on the proposal of the Registrar, subject to 
subsequent approval by the Court. 

Art. 22. The Court shall determine or modify the organization of 
the Registry upon proposals submitted by the Registrar. On the pro- 
posal of the Registrar, the President shall appoint the member of the 


ANNEX III 299 


Registry who is to act for the Registrar in his absence or, in the event 
of his ceasing to hold his office, until a successor has been appointed. 

Art. 23. The registers kept in the archives shall be so arranged as 
to give particulars with regard to the following points amongst others: 

1. For each case or question, all documents pertaining to it and all 
action taken with regard to it in chronological order; all such docu- 
ments shall bear the same file number and shall be numbered con- 
secutively within the file; 

2. All decisions of the Court in chronological order, with references 
to the respective files; 

3. All advisory opinions given by the Court in chronological order, 
with references to the respective files; 

4. All notifications and similar communications sent out by the Court, 
with references to the respective files. 

Indexes kept in the archives shall comprise: 

1. A card index of names with necessary references; 

2. A card index of subject matter with like references. 

Art. 24. During hours to be fixed by the President the Registrar 
shall receive any documents and reply to any enquiries, subject to the 
provisions of Article 38 of the present Rules and to the observance of 
professional secrecy. 

Art. 25. The Registrar shall be the channel for all communications 
to and from the Court. 

The Registrar shall ensure that the date of despatch and receipt of 
all communications and notifications may readily be verified. Communi- 
cations and notifications sent by post shall be registered. Communica- 
tions addressed to the official representatives or to the agents of the 
parties shall be considered as having been addressed to the parties them- 
selves. The date of receipt shall be noted on all documents received 
by the Registrar, and a receipt bearing this date and the number under 
which the document has been registered shall be given to the sender, if 
a request to that effect be made. 

Art. 26. The Registrar shall be responsible for the archives, the 
accounts and all administrative work. He shall have the custody of 
the seals and stamps of the Court. He shall himself be present at all 
meetings of the full Court and either he, or a person appointed to rep- 
resent him with the approval of the Court, shall be present at all 
sittings of the various Chambers; he shall be responsible for drawing 
up the minutes of the meetings. 

He shall further undertake all duties which may be laid upon him 


by the present Rules. 


300 THE SENATE AND THE COURT 


The duties of the Registry shall be set forth in detail in a List of 
Instructions to be submitted by the Registrar to the President for his 
approval. 


HEADING 2.—Working of the Court. 


Art. 27. In the year following a new election of the whole Court 
the ordinary annual session shall commence on the fifteenth of 
January. 

If the day fixed for the opening of a session is regarded as a holiday 
at the place where the Court is sitting, the session shall be opened on 
the working day following. 

Art. 28. The list of cases shall be prepared and kept up to date by 
the Registrar under the responsibility of the President. The list for 
each session shall contain all questions submitted to the Court for an 
advisory opinion and all cases in regard to which the written pro- 
ceedings are concluded in the order in which the documents submitting 
each question or case have been received by the Registrar. If in the 
course of a session, a question is submitted to the Court or the written 
proceedings in regard to any case are concluded, the Court shall de- 
cide whether such question or case shall be added to the list for that 
session. 

The Registrar shall prepare and keep up to date extracts from the 
above list showing the cases to be dealt with by the respective Cham- 
bers. 

The Registrar shall also prepare and keep a list. of cases for re- 
vision. 

Art. 29. During the sessions the dates and hours of sittings shall 
be fixed by the President. 

Art. 30. If at any sitting of the full Court it is impossible to ob- 
tain the prescribed quorum, the Court shall adjourn until the quorum 
is obtained. 

Art. 313. The Court shall sit in private to deliberate upon the de- 
cision of any case or on the reply to any question submitted to a. 

During the deliberation referred to in the preceding paragraph, only 
persons authorized to take part in the deliberation and the Registrar 
shall be present. No other person shall be admitted except by virtue 
of a special decision taken by the Court, having regard to exceptional 
circumstances. 

Every member of the Court who is present at the deliberation shall 
state his opinion together with the reasons on which it is based. 


ANNEX III 301 


The decision of the Court shall be based upon the conclusions 
adopted after final discussion by a majority of the members. 

Any member of the Court may request that a question which is to 
be voted upon shall be drawn up on precise terms in both the official 
languages and distributed to the Court. A request to this effect shall 
be complied with. 


CHAPTER Il. Procedure 
HEADING 1.—Contentious Procedure 
SECTION A. General Provisions. 


Art. 32. The rules contained under this heading shall in no way 
preclude the adoption by the Court of such other rules as may be 
jointly proposed by the parties concerned, due regard being paid to 
the particular circumstances of each case. 

Art. 33. The Court shall fix time limits in each case by assigning 
a definite date for the completion of the various acts of procedure, 
having regard as far as possible to any agreement between the parties. 

The Court may extend time limits which it has fixed. It may like- 
wise decide in certain circumstances that any proceeding taken after 
the expiration of a time limit shall be considered as valid. 

If the Court is not sitting the powers conferred upon it by this 
article shall be exercised by the President, subject to any subsequent 
decision of the Court. 

Art. 34. All documents of the written proceedings submitted to the 
Court shall be accompanied by not less than thirty printed copies certi- 
fied correct. The President may order additional copies to be supplied. 


SECTION B. Procedure before the Court and before the special 
Chambers. 


(Articles 26 and 27 of the Statute) 
I. Institution of Proceedings. 


Art. 35. When a case is brought before the Court by means of a 
special agreement, the latter, or the document notifying the Court of 
the agreement, shall mention the addresses selected at the seat of the 
Court to which notices and communications intended for the respective 
parties are to be sent. 


302 THE SENATE AND THE COURT 


In all other cases in which the Court has jurisdiction, the application 
shall include, in addition to an indication of the subject of the dispute 
and the names of the parties concerned, a succinct statement of facts, 
an indication of the claim and the address-selected at the seat of the 
Court to which notices and communications are to be sent. 

Should proceedings be instituted by means of an application, the first 
document sent in reply thereto shall mention the address selected at 
the seat of the Court to which subsequent notices and communications 
in regard to the case are to be sent. 

Should the notice of a special agreement, or the application, contain 
a request that the case be referred to one of the special Chambers 
mentioned in Articles 26 or 27 of the Statute, such request shall be 
complied with, provided that the parties are in agreement. 

Similarly, a request to the effect that technical assessors be attached 
to the Court, in accordance with Article 27 of the Statute, or that the 
case be referred to the Chamber for summary procedure shall also 
be granted; compliance with the latter request is, however, subject to 
the condition that the case does not refer to any of the questions indi- 
cated in Articles 26 and 27 of the Statute. 

Art. 36. The Registrar shall forthwith communicate to all members 
of the Court special agreements or applications which have been noti- 
fied to him. 


Il. Written. Proceedings. 


Art. 37. Should the parties agree that the proceedings shall be con- 
ducted in French or in English, the documents constituting the written 
procedure shall be submitted only in the language adopted by the 
parties. . 

In the absence of an agreement with regard to the language to be 
employed, documents shall be submitted in French or in English. 

Should the use of a language other than French or English be 
authorized, a translation into French or into English shall be attached 
to the original of each document submitted. 

The Registrar shall not be bound to make translations of documents 
submitted in accordance with the above rules. 

In the case of voluminous documents the Court, or the President if 
the Court is not sitting, may, at the request of the party concerned, 
sanction the submission of translations of portions of documents only. 

Art. 38. The Court, or the President, if the Court is not sitting, 
may, after hearing the parties, order the Registrar to hold the cases 


ANNEX III 303 


and counter-cases of each suit at the disposal of the Government of 
any State which is entitled to appear before the Court. 

Art. 39. In cases in which proceedings have been instituted by means 
of a special agreement, the following documents may be presented in 
the order stated below, provided that no agreement to the contrary has 
been concluded between the parties: 

a case, submitted by each party within the same limit of time; 

a counter-case, submitted by each party within the same limit of 
time; . 

a reply, submitted by each party within the same limit of time. 

When proceedings are instituted by means of an application, failing 
any agreement to the contrary between the parties, the documents shall 
be presented in the order stated below: 

the case by the applicant; 

the counter-case by the respondent ; 

the reply by the applicant; 

the rejoinder by the respondent. 

Art. 40. Cases shall contain: 

I. a statement of the facts on which the claim is based; 

2. a statement of law; 

3. a statement of conclusions ; 

4. a list of the document in support; these documents shall be 
attached to the case. 

Counter-cases shall contain: 

1. the affirmation or contestation of the facts stated in the case; 

2. a statement of additional facts, if any; 

3. a statement of law; 

4. conclusions based on the facts stated; these conclusions may in- 
clude counter-claims, in so far as the latter come within the jurisdiction 
of the Court; 

5. a list of the document in support; these documents shall be 
attached to the counter-case. 

Art. 41. Upon the termination of the written proceedings the 
President shall fix a date for the commencement of the oral pro- 
ceedings. 

Art. 42. The Registrar shall forward to each of the members of the 
Court, a copy of all documents in the case as he receives them. 


III. Oral Proceedings. 
Art. 43. In the case of a public sitting, the Registrar shall publish 


204 THE SENATE AND THE COURT 


in the Press all necessary information as to the date and hour fixed. 

Art. 44. The Registrar shall arrange for the interpretation from 
French into English and from English into French of all statements, 
questions and answers which the Court may direct to be so inter- 
preted. 

Whenever a language other than French or English is employed, 
either under the terms of the third paragraph of Article 39 of the 
Statute or in a particular instance, the necessary arrangements for 
translation into one of the two official languages shall be made by 
the party concerned. In the case of witnesses or experts who appear 
at the instance of the Court, these arrangements shall be made by the 
Registrar. 

Art. 45. The Court shall determine in each case whether the repre- 
sentatives of the parties shall address the Court before or after the 
production of the evidence; the parties shall, however, retain the right 
to comment on the evidence given. 

Art. 46. The order in which the agents, advocates or counsel, shall 
be called upon to speak shall be determined by the Court, failing an 
agreement between the parties on the subject. 

Art. 47. In sufficient time before the opening of the oral proceed- 
ings, each party shall inform the Court and the other parties of all 
evidence which it intends to produce, together with the names, Chris- 
tian names, description and residence of witnesses whom it desires to 
be heard. 

It shall further give a general indication of the point or points to 
which the evidence is to refer. 

Art. 48. The Court may, subject to the provisions of Article 44 of 
the Statute, invite the parties to call witnesses, or may call for the 
production of any other evidence on points of fact in regard to which 
the parties are not in agreement. 

Art. 49. The Court, or the President should the Court not be 
sitting, shall, at the request of one of the parties or on its own initia- 
tive, take the necessary steps for the examination of witnesses out of 
Court. 

Art. 50. Each witness shall make the following solemn declaration 
before giving his evidence in Court: 

“T solemnly declare upon my honour and conscience that I will speak 
the truth, the whole truth and nothing but the truth.” 

Art. 51. Witnesses shall be examined by the representatives of the 
parties under the control of the President. Questions may be put to 
them by the President and afterwards by the judges. 


ANNEX III 305 


Art. 52. The indemnities of witnesses who appear at the instance of 
the Court shall be paid out of the funds of the Court. 

Art. 53. Any report or record of any enquiry carried out at the 
request of the Court, under the terms of Article 50 of the Statute, and 
reports furnished to the Court by experts, in accordance with the same 
Article, shall be forthwith communicated to the parties. 

Art. 54. <A record shall be made of the evidence taken. The portion 
containing the evidence of each witness shall be read over to him and 
approved by him. 

As regards the remainder of the oral proceedings, the Court shall 
decide in each case whether verbatim records of all or certain portions 
of them shall be prepared for its own use. 

Art. 55. The minutes mentioned in Article 47 of the Statute shall 
in particular include: 

1. the names of the judges; 

2. the names of the agents, advocates and counsel; 

3. the names, Christian names, description and residence of witnesses 
heard ; 

4. a specification of other evidence produced; 

5. any declaration made by the parties; 

6. all decisions taken by the Court during the hearing. 

Art. 56. Before the oral proceedings are concluded each party may 
present his bill of costs. 


IV. Interim Protection. 


Art. 57. When the Court is not sitting, any measures for the preser- 
vation in the meantime of the respective rights of the parties shall be 
indicated by the President. 

Any refusal by the parties to conform to the suggestions of the Court 
or of the President, with regard to such measures, shall be placed in 
record. 


V. Intervention. 


Art. 58. An application for permission to intervene, under the terms 
of Article 62 of the Statute, must be communicated to the Registrar 
at latest before the commencement of the oral proceedings. 

Nevertheless the Court may, in exceptional circumstances, consider 
an application submitted at a later stage. 

Art. 59. The application referred to in the preceding Article shall 
contain: 


306 THE SENATE AND THE COURT 


I. a specification of the case in which the applicant desires to inter- 
vene; 

2. a statement of law and of fact justifying intervention; 

3. a list of the documents in support of the application; these docu- 
ments shall be attached. 

Such application shall be immediately communicated to the parties, 
who shall send to the Registrar any observations which they may 
desire to make within a period to be fixed by the Court, or by the 
President, should the Court not be sitting. 

Art. 60. Any State desiring to intervene, under the terms of Article 
63 of the Statute, shall inform the Registrar in writing at latest be- 
fore the commencement of the oral proceedings. 

The Court, or the President if the Court is not sitting, shall take the 
necessary steps to enable the intervening State to inspect the docu- 
ments in the case, in so far as they relate to the interpretation of the 
convention in question, and to submit its observations thereon to the 
Court. 


VI. Agreement. 


Art. 61. If the parties conclude an agreement regarding the settle- 
ment of the dispute and give written notice of such agreement to the 
Court before the close of the proceedings, the Court shall officially 
record the conclusion of the agreement. 

Should the parties by mutual agreement notify the Court in writing 
that they intend to break off proceedings, the Court shall officially 
record the fact and proceedings shall be terminated. 


VII. Judgment. 


Art. 62. The judgment shall contain: 

1. the date on which it is pronounced; 

2. the names of the judges participating; 

3. the names and style of the parties; 

4. the names of the agents of the parties; 

5. the conclusions of the parties; 

6. the matters of. fact; 

7. the reasons in point of law; 

8. the operative provisions of the judgment; 

9. the decision, if any, referred to in Article 64 of the. Statute. 


ANNEX III 307 


The opinions of judges who dissent from the judgment, shall be 
attached thereto should they express a desire to that effect. 

Art. 63. After having been read in open Court the text of the 
judgment shall forthwith be communicated to all parties concerned 
and to the Secretary-General of the League of Nations. 

Art. 64. The judgment shall be regarded as taking effect on the day 
on which it is read in open Court, in accordance with Article 58 of 
the Statute. 

Art. 65. A collection of the judgments of the Court shall be printed 
and published under the responsibility of the Registrar. 


VIII. Revision. 


Art. 66. Application for revision shall be made in the same form as 
the application mentioned in Article 40 of the Statute. 

It shall contain: 

1. the reference to the judgment impeached ; 

2. the fact on which the application is based; 

3. a list of the documents in support; these documents shall be 
attached. 

It shall be the duty of the registrar to give immediate notice of an 
application for revision to the other parties concerned. The latter may 
submit observations within a time limit to be fixed by the Court, or by 
the President should the Court not be sitting. 

If the judgment impeached was pronounced by the full Court, the 
application for revision shall also be dealt with by the full Court. 
It the judgment impeached was pronounced by one of the Chambers 
mentioned in Articles 26, 27 or 29 of the Statute, the application for 
revision shall be dealt with by the same Chamber. The provisions of 
Article 13 of the Statute shall apply in all cases. 

If the Court, under the third paragraph of Article 61 of the Stat- 
ute, makes a special order rendering the admission of the application 
conditional upon previous compliance with the terms of the judgment 
impeached, this condition shall be immediately communicated to the 
applicant by the Registrar, and proceedings in revision shall be stayed 
pending receipt by the Registrar of proof of previous compliance with 
the original judgment and until such proof shall have been accepted 


by the Court. 


SECTION Cc. Summary Procedure. 


Art. 67. Except as provided under the present section the rules for 


308 THE SENATE AND THE COURT 


procedure before the full Court shall apply to summary procedure. 

Art. 68. Upon receipt by the Registrar of the document instituting 
proceedings in a case which, by virtue of an agreement between the 
parties, is to be dealt with by summary procedure, the President shall 
convene as soon as possible the Chamber referred to in Article 29 of 
the Statute. 

Art. 69. The proceedings are opened by the presentation of a case 
by each party. These cases shall be communicated by the Registrar 
to the members of the Chamber and to the opposing party. 

The cases shall contain reference to all evidence which the parties 
may desire to produce. 

Should the Chamber consider that the cases do not furnish adequate 
information, it may, in the absence of an agreement to the contrary 
between the parties, institute oral proceedings. It shall fix a date for 
the commencement of the oral proceedings. 

At the hearing, the Chamber shall call upon the parties to supply 
oral explanations. It may sanction the production of any evidence 
mentioned in the cases. 

If it is desired that witnesses or experts whose names are mentioned 
in the case should be heard, such witnesses or experts must be avail- 
able to appear before the Chamber when required. 

' Art. 70. The judgment is the judgment of the Court rendered in 
the Chamber of summary procedure. It shall be read at a public 
sitting of the Chamber. 


HEADING 2.—Advisory Procedure. 


Art. 71. Advisory opinions shall be given after deliberation by the 
full Court. 

The opinions of dissenting judges may, at their request, be attached 
to the opinion of the Court. 

Art. 72. Questions upon which the advisory opinion of the Court 
is asked shall be laid before the Court by means of a written request, 
signed either by the President of the Assembly or the President of 
the Council of the League of Nations, or by the Secretary-General 
of the League under instructions from the Assembly or the Coun- 
cil. 

The request shall contain an exact statement of the question upon 
which an opinion is required, and shall be accompanied by all docu- 
ments likely to throw light upon the question. 

Art. 73. The Registrar shall forthwith give notice of the request 


ANNEX III 309 


for an advisory opinion to the members of the Court, and to the 
Members of the League of Nations, through the Secretary-General of 
the League, and to the States mentioned in the Annex to the Covenant. 

Notice of such request shall also be given to any international or- 
ganizations which are likely to be able to furnish information on the 
question. 

Art. 74. Any advisory opinion which may be given by the Court 
and the request in response to which it was given shall be printed and 
published in a special collection for which the Registrar shall be 
responsible. 


HEADING 3.—Errors 


Art. 75. The Court, or the President if the Court is not sitting, shall 
be entitled to correct an error in any order, judgment or opinion, 
arising from a slip or accidental omission. 

Done at The Hague, the twenty-fourth day of March, one thousand 
nine hundred and twenty-two. 

(s.) Lover, 
President. 

(s.) A. HAMMARSKJOLD, 
Registrar. 


ANNEX IV 


MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING 
A LETTER FROM THE SECRETARY OF STATE 


February 24, 1923.—Read; referred to the Committee on Foreign Rela- 
tions and ordered to be printed. 


The White House, Washington, February 24, 1923. 


To the Senate: 

There has been established at The Hague a Permanent Court of 
International Justice for the trial and decision of international causes 
by judicial methods, now effective through the ratification by the signa- 
tory powers of a special protocol. It is organized and functioning. 
The United States is a competent suitor in the court, through provision 
of the statute creating it, but that relation is not sufficient for a Nation 
long committed to the peaceful settlement of international controversies. 
Indeed, our Nation had a conspicuous place in the advocacy of such an 
agency of peace and international adjustment, and our deliberate public 
opinion of today is overwhelmingly in favor of our full participation, 
and the attending obligations of maintenance and the furtherance of 
its prestige. It is for this reason that I am now asking for the con- 
sent of the Senate to our adhesion to the protocol. 

With this request I am sending to the Senate a copy of the letter 
addressed to me by the Secretary of State, in which he presents in 
detail the history of the establishment of the court, takes note of the 
objection to our adherence because of the court’s organization under 
the auspices of the League of Nations, and its relation thereto, and 
indicates how, with ‘Certain reservations, we may fully adhere and 
participate, and remain wholly free from any legal relation to the league 
or assumption of obligation under the covenant of the league, 

I forbear repeating the presentation made by the Secretary of State, 
but there is one phase of the matter not covered in his letter with 
which I choose frankly to acquaint the Senate. For a long period, 
indeed, ever since the International Conference on the Limitation of 

310 


ANNEX IV 311 


Armament, the consideration of plans under which we might adhere to 
the protocol has been under way. We were unwilling to adhere unless 
we could participate in the selection of judges; we could not hope to 
participate with an American accord if aherence involved any legal 
relation to the league. These conditions, there is good reason to believe, 
will be acceptable to the signatory powers, though nothing definitely 
can be done until the United States tenders adhesion with these reserva- 
tions. Manifestly the Executive can not make this tender until the 
Senate has spoken its approval. Therefore, I most earnestly urge your 
favorable advice and consent. I would rejoice if some action could be 
taken, even in the short period which remains of the present session. 

It is not a new problem in international relationship, it is wholly a 
question of accepting an established institution of high character, and 
making effective all the fine things which have been said by us in favor 
of such an agency of advanced civilization. It would be well worth the 
while of the Senate to make such special effort as is becoming to record 
its approval. Such action would add to our own consciousness of 
participation in the fortunate advancement of international relationship, 
and remind the world anew that we are ready for our proper part in 
furthering peace and adding to stability in world affairs. 

Warren G. Harpinc. 


State Department, Washington, February 17, 1923. 


My Dear Mr. President: Referring to our interviews with respect 
to the advisability of action by this Government in order to give its 
adhesion, upon appropriate conditions, to the protocol establishing the 
Permanent Court of International Justice, I beg leave to submit the 
following considerations : 

From its foundation, this Government has taken a leading part in 
promoting the judicial settlement of international disputes. Prior to 
the first peace conference at The Hague in 1899 the United States had 
participated in 57 arbitrations, 20 of which were with Great Britain. 
The President of the United States had acted as arbitrator between 
other nations in five cases, and ministers of the United States, or other 
persons designated by this Government, had acted as arbitrator or 
umpire in seven cases. In 1890 the Congress adopted a concurrent 
resolution providing— 

That the President be, and is hereby, requested to invite, from time 


312 THE SENATE AND THE COURT 


to time, as fit occasions may arise, negotiations with any Government 
with which the United States has or may have diplomatic relations, to 
the end that any differences or disputes arising between the two Gov- 
ernments which can not be adjusted by diplomatic agency may be re- 
ferred to arbitration and be peacefully adjusted by such means (Cong. 
Rec., 51st Cong., Ist sess., pt. 3, vol. 21, p. 2986). 

In his instructions to the delegates of this Government to the first 
peace conference at The Hague, Secretary Hay said: 

Nothing can secure for human government and for the authority of 
law which it represents so deep a respect and so firm a loyalty as the 
spectacle of sovereign and independent States, whose duty it is to pre- 
scribe the rules of justice and impose penalties upon the lawless, bowing 
with reverence before the august supremacy of those principles of 
right which give to law its eternal foundation. 

A plan for a permanent international tribunal accompanied these 
instructions. 

At that conference there was adopted a “convention for the pacific 
settlement of international disputes” which provided for a Permanent 
Court of Arbitration. This organization, however, while called a 
permanent court, really consists of an eligible list of persons designated 
by the contracting parties, respectively, from whom tribunals may be 
constituted for the determination of such controversies as the parties 
concerned may agree to submit to them. 

In 1908 and 1909 the United States concluded 19 general conventions 
of arbitration which, in accordance with The Hague conventions, pro- 
vided for arbitration by special agreement of differences which are of 
a legal nature or which relate to the interpretation of treaties, and 
which it may not have been possible to settle by diplomacy, provided 
that the differences do not affect the vital interest, the independence, or 
the honor of the two contracting States and do not concern the in- 
terests of third parties. Moreover since the first peace conference 
at The Hague a number of conventions have been concluded by 
this Government submitting to arbitration questions of great import- 
ance, 

It is believed that the preponderant opinion in this country has not 
only favored the policy of judicial settlement of justiciable international 
disputes through arbitral tribunals specially established, but it has also 
strongly desired that a permanent court of international justice should 
be established and maintained. In his instructions to the delegates of 
the United States to the second peace conference held at The Hague 
in 1907, Secretary Root emphasized the importance of the establishment 


ANNEX IV 313 


of such a tribunal in conformity with accepted judicial standards. 
He said: 

It should be your effort to bring about in the second conference a 
development of The Hague tribunal into a permanent tribunal com- 
posed of judges who are judicial officers and nothing else, who are 
paid adequate salaries, who have no other occupation, and who will 
devote their entire time to the trial and decision of international causes 
by judicial methods and under a sense of judicial responsibility. These 
judges should be so selected from the different countries that the dif- 
ferent systems of law and procedure and the principal languages shall 
be fairly represented. The court should be of such dignity, considera- 
tion, and rank that the best and ablest jurists will accept appointment 
to it, and that the whole world will have absolute confidence in its 
judgment. 

The second peace conference discussed a plan looking to the attain- 
ment of this object, but the project failed because an agreement could 
not be reached with respect to the method of selecting judges. The 
conference adopted the following recommendation: 

The conference recommends to the signatory powers the adoption of 
the project hereto annexed of a convention for the establishment of a 
court of arbitral justice and its putting into effect as soon as an accord 
shall be reached upon the choice of the judges and the constitution of 
the court. 

The covenant of the League of Nations provided, in article 14, that 
the council of the league should formulate and submit to the members 
of the league plans for the establishment of a Permanent Court of 
International Justice, which should be competent to hear and deter- 
mine any dispute of an international character which the parties thereto 
should submit to it and which also might give an advisory opinion upon 
any dispute or question referred to it by the council or by the as- 
sembly of the league. This provision of the covenant, it may be said, 
did not enter into the subsequent controversy with respect to participa- 
tion by this Government in the League of Nations; on the contrary, it 
is believed that this controversy reflected but little, if any, divergence 
of view in this country with respect to the advisability of establishing 
a permanent international court. 

Pursuant to the direction contained in the article above quoted, the 
council of the league appointed an advisory committee of jurists which 
sat at The Hague in the summer of 1920 and formulated a plan for 
the establishment of such a court. Hon. Elihu Root was a member of 
that committee. It recommended a plan which was subsequently ex- 


314 THE SENATE AND THE COURT 


amined by the council and assembly of the league; and after certain 
amendments had been made, the statute constituting the Permanent 
Court of International Justice was adopted by the assembly of the 
league on December 13, 1920. 

While these steps were taken under the auspices of the league the 
statute constituting the Permanent Court of International Justice did 
not become effective upon its adoption by the assembly of the league. 
On the contrary, it became effective by virtue of the signature, and 
ratification by the signatory powers, of a special protocol. The reason 
for this procedure was that, although the plan of the court was pre- 
pared under article 14 of the covenant, the statute went beyond the 
terms of the covenant, especially in making the court available to States 
which were not members of the League of Nations. Accordingly, a 
protocol of signature was prepared by which the signatory powers de- 
clared their acceptance of the adjoined statute of the Permanent Court 
of International Justice. The permanent court thus established by the 
signatory powers under the protocol with the statute annexed is’ now 
completely organized and at work. 

The statute of the court provides for the selection of the judges; 
defines their qualifications, and prescribes the jurisdiction of the court 
and the procedure to be followed in litigation before it. 

The court consists of 15 members, 11 judges, called “ordinary judges,” 
and 4 deputy judges. The 11 judges constitute the full court. In case 
they can not all be present, deputies are to sit as judges in place of 
the absentees; but, if 11 judges are not available, 9 may constitute a 
quorum. It is provided that the judges shall be elected regardless of 
their nationality from amongst persons of high moral character, pos- 
sessing the qualifications required in their respective countries for ap- 
pointments to the highest judicial offices, or are jurisconsults of 
recognized competence in international) law. The judges are elected by 
the council and assembly of the league, each body proceeding inde- 
pendently. The successful candidate must obtain an absolute majority 
of votes in each body. The judges are elected for nine years and are 
eligible for re-election. The ordinary judges are forbidden to exercise 
any political or administrative function. This provision does not apply 
to the deputy judges, except when performing their duties on the court. 

The jurisdiction of the court comprises all cases which the parties 
refer to it and all matters specially provided for in treaties and con- 
ventions in force. 

Provision has also been made so that any signatory power, if it de- 
sires, may in signing the protocol accept as compulsory “ipso facto and 


ANNEX IV 315 


without special convention” the jurisdiction of the court in all or any 
of the classes of legal disputes concerning (a) the interpretation of a 
treaty; (b) any question of international law; (c) the existence of 
any fact which, if established, would constitute a breach of an inter- 
national obligation, and (d) the nature or extent of the reparation to 
‘be made for the breach of an international obligation. 

This is an entirely optional clause and unless it is signed the juris- 
diction of the court is not obligatory. 

The first election of judges of the court took place in September, 
1921. The 11 ordinary judges are the following: Viscount Robert 
Bannatyne Finlay, Great Britain; B. C. J. Loder, Holland; Ruy Bar- 
bosa, Brazil; D. J. Nyholm, Denmark; Charles Andre Weiss, France; 
John Bassett Moore, United States; Antonio Sanchez de Bustamente, 
Cuba; Rafael Altamira, Spain; Yorozu Oda, Japan; Dionisio An- 
zilotti, Italy, and Max Huber, Switzerland. The four deputies are: 
Michailo Yovanovitch, Serb-Croat-Slovene State; F. V. N. Beichmann, 
Norway; Demetre Negulesco, Rumania, and Chung-Hui Wang, China. 

It will be noted that one of the most distinguished American jurists 
has been elected a member of the court, Hon. John Bassett Moore. 

In considering the question of participation of the United States 
in the support of the permanent court, it may be observed that the 
United States is already a competent suitor in the court. The Statute 
expressly provides that the court shall be open not only to members 
of the league but to States mentioned in the annex to the covenant. 

But it is not enough that the United States should have the privi- 
leges of a suitor. In view of the vast importance of provisions for 
the peaceful settlement of international controversies, of the time- 
honored policy of this Government in promoting such settlements, 
and of the fact that it has at last been found feasible to establish 
upon a sound basis a permanent international court of the highest 
distinction and to invest it with a jurisdiction which conforms to 
American principles and practice, I am profoundly convinced that this 
Government, under appropriate conditions, should become a party to 
the convention establishing the court and should contribute its fair 
share of the expense of maintenance. 

I find no insuperable obstacle in the fact that the United States 
is not a member of the League of Nations. The statute of the court 
has various procedural provisions relating to the league. But none 
of these provisions save those for the election of judges, to which 
I shall presently refer, are of a character which would create any 
difficulty in the support of the court by the United States despite 


316 THE SENATE AND THE COURT 


its nonmembership in the league. None of these provisions impair 
the independence of the court. It is an establishment separate from 
the league, having a distinct legal status resting upon the protocol 
and statute. It is organized and acts in accordance with judicial 
standards, and its decisions are not controlled or subject to review 
by the League of Nations. 

In order to avoid any question that adhesion to the protocol and 
acceptance of the statute of the court would involve any legal rela- 
tion on the part of the United States to the League of Nations or 
the assumption of any obligations by the United States under the 
covenant of the League of Nations, it would be appropriate, if so 
desired, to have the point distinctly reserved as a part of the terms 
of the adhesion on the part of this Government. 

Again, as already noted, the signature of the protocol and the 
consequent acceptance of the statute, in the absence of assent to the 
optional compulsory clause, does not require the acceptance by the 
signatory powers of the jurisdiction of the court except in such cases 
as may thereafter be voluntarily submitted to the court. Hence, 
in adhering to the protocol, the United States would not be required 
to depart from the position, which it has thus far taken, that there 
should be a special agreement for the submission of a particular con- 
troversy to arbitral decision. 

There is, however, one fundamental objection to adhesion on the 
part of the United States to the protocol and the acceptance of the 
statute of the court in its present form. That is, that under the pro- 
visions of the statute only members of the League of Nations are 
entitled to a voice in the election of judges. The objection is not 
met by the fact that this Government is represented by its own national 
group in The Hague Court of Arbitration and that this group may 
nominate candidates for election as judges of the Permanent Court of 
International Justice. This provision relates simply to the nomination 
of candidates; the election of judges rests with the council and as- 
sembly of the League of Nations. It is no disparagement of the 
distinguished abilities of the judges who have already been chosen 
to say that the United States could not be expected to give its formal 
support to a permanent international tribunal in the election of the 
members of which it had no right to take part. 

I believe that the validity of this objection is recognized and that 
it will be feasible to provide for the suitable participation by the 
United States in the election of judges, both ordinary and deputy 
judges, and in the filling) of vacancies. The practical advantage of 


ANNEX IV 317 


the present system of electing judges by the majority of votes of the 
council and assembly of the league acting separately is quite mani- 
fest. It was this arrangement which solved the difficulty, thereto- 
fore appearing almost insuperable, of providing an electoral system 
conserving the interests of the powers, both great and small. It 
would be impracticable, in my judgment, to disturb the essential 
features of this system. It may also be observed that the members 
of the council and assembly of the league in electing the judges of 
the court do not act under the covenant of the League of Nations, 
but under the statute of the court and in the capacity of electors 
performing duties defined by the statute. It would seem to be rea- 
sonable and practicable that in adhering to the\protocol and accept- 
ing the statute this Government should prescribe as a condition that 
the United States, through representatives designated for the pur- 
pose, should be permitted to participate, upon an equality with other 
States members of the League of Nations, in all proceedings, both 
of the council and of the assembly of the league, for the election of 
judges or deputy judges of the court or for the filling of vacancies 
in these offices. 

As the statute of the court prescribes its organization, compe- 
tence, and procedure, it would also be appropriate to provide, as a 
condition of the adhesion of the United States, that the statute should 
not be amended without the consent of the United States. 

The expenses of the court are not burdensome. Under the statute 
of the court, these expenses are borne by the League of Nations; the 
league determines the budget and apportions the amount among its 
members. I understand that the largest contribution by any State 
is but little more than $35,000 a year. In this matter also the mem- 
bers of the council and assembly of the league do not act under the 
covenant of the league but under the statute of the court. The 
United States, if it adhered to the protocol, would of course desire 
to pay its fair share of the expense of maintaining the court. The 
amount of this contribution would, however, be subject to determina- 
tion by Congress and to the making of appropriations for the purpose. 
Reference to this matter also might properly be made in the instrument 
of adhesion. 

Accordingly I beg leave to recommend that, if this course meets 
with your approval, you request the Senate to take suitable action 
advising and consenting to the adhesion on the part of the United 
States to the protocol of December 16, 1920, accepting the adjoined 
statute of the Permanent Court of International Justice, but not the 


318 THE SENATE AND THE COURT 


optional clause for compulsory jurisdiction; provided, however, that 
such adhesion shall be upon the following conditions and under- 
standings to be made a part of the instrument of adhesion: 

I. That such adhesion shall not be taken to involve any legal re- 
lation on the part of the United States to the League of Nations or 
the assumption of any obligations by the United States under the 
covenant of the League of Nations constituting Part I of the treaty 
of Versailles. 

II. That the United States shall be permitted to participate through 
representatives designated for the purpose and upon an equality with 
the other States members, respectively, of the council and assembly 
of the League of Nations in any and all proceedings of either the 
council or the assembly for the election of judges or deputy judges 
of the Permanent Court of International Justice, or for the filling 
of vacancies. 

III. That the United States will pay a fair share of the expenses 
of the court as determined and appropriated from time to time by 
the Congress of the United States. 

IV. That the statute for the Permanent Court of International 
Justice adjoined to the protocol shall not be amended without the 
consent of the United States. 

If the Senate gives its assent upon this basis, steps can then be 
taken for the adhesion of the United States to the protocol in the 
manner authorized. The attitude of this Government will thus be 
defined and communicated to the other signatory powers whose acqui- 
escence in the stated conditions will be necessary. 

Copies of the resolution of the assembly of the League of Nations 
of December 13, 1920, the protocol of December 16, 1920, and the 
statute of the court are inclosed herewith. 

I am, my dear Mr. President, faithfully yours, 

CHARLES E, HUGHES. 


ANNEX V 
TEXT OF SWANSON RESOLUTION (S. Res. 220) 


Whereas the President, under date of February 24, 1923, trans- 
mitted a message to the Senate accompanied by a letter from the Sec- 
retary of State, dated February 17, 1923, asking the favorable advice 
and consent of the Senate to the adhesion on the part of the United 
States to the protocol of December 16, 1920, of signature of the statute 
for the Permanent Court of International Justice, set out in the said 
message of the President (without accepting or agreeing to the op- 
tional clause for compulsory jurisdiction contained therein), upon the 
conditions and understandings hereafter stated, to be made a part of 
the instrument of adhesion: Therefore be it 

Resolved (two-thirds of the Senators present concurring), That 
the Senate advise and consent to the adhesion on the part of the United 
States to the said protocol of December 16, 1920, and the adjoined 
statute for the Permanent Court of International Justice (without ac- 
cepting or agreeing to the optional clause for compulsory jurisdiction 
contained in said statute), and that the signature of the United States 
be affixed to the said protocol subject to the following reservations and 
understandings, which are hereby made a part and condition of this 
resolution, namely: 

1. That such adhesion shall not be taken to involve any legal rela- 
tion on the part of the United States to the League of Nations or the 
assumption of any obligations by the United States under the covenant 
of the League of Nations constituting part 1 of the treaty of Ver- 
sailles. 

2. That the United States shall be permitted to participate through 
representatives designated for the purpose and upon an equality with 
the other States, members, respectively, of the council and assembly of 
the League of Nations, in any and all proceedings of either the coun- 
cil or the assembly for the election of judges or deputy judges of 
the Permanent Court of International Justice or for the filling of 
vacancies. 

3. That the United States will pay a fair share of the expenses 

319 


320 THE SENATE AND THE COURT 


of the court as determined and appropriated from time to time by 
the Congress of the United States. 

4. That the statute for the Permanent Court of International Justice 
adjoined to the protocol shall not be amended without the consent of 
the United States. 

5. That the United States shall be in no manner bound by an ad- 
visory opinion of the Permanent Court of International Justice not 
rendered pursuant to a request in which it, the United States, shall 
expressly join in accordance with the statute for the said court adjoined 
to the protocol of signature of the same to which the United States 
shall become signatory. 

The signature of the United States to the said protocol shall not 
be affixed until the powers signatory to such protocol shall have indi- 
cated, through an exchange of notes, their acceptance of the fore- 
going reservations and understandings as a part and a condition of 
adhesion by the United States to the said protocol. 


ANNEX VI 
Text oF Lopce Resotution (S. J. Res. 122) 


Requesting the President to propose the calling of a Third Hague Con- 
ference for the establishment of a World Court of International Justice 

Resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled, That the President be, and 
he is hereby, respectfully requested to propose on behalf of the Gov- 
ernment of the United States to the nations of the world the calling 
of a Third Hague Conference and to recommend to such conference 
the following statute for the establishment of a World Court of Inter- 
national Justice: 


STATUTE FOR THE WORLD COURT 


Article 1. A World Court is hereby established. This court shall 
be in addition to the Court of Arbitration organized by the conventions 
of The Hague of 1899 and 1907, and to the special tribunals of arbitra- 
tion to which states are always at liberty to submit their disputes for 
settlement. 


CHAPTER I—Organization of the Court 


Article 2. The World Court shall be composed of a body of inde- 
pendent judges, elected regardless of their nationality from amongst 
persons of high moral character, who possess the qualifications required 
in their respective countries for appointment to the highest judicial 
offices, or are juris-consults of recognized competence in international 
law. 

Article 3. The members of the court shall be elected by an electorial 
commission which shall consist of a general committee composed of 
representatives designated for that purpose by the signatory powers, 
and a special committee composed of representatives designated for that 
purpose by the United States of America, the British Empire, France, 
Italy, and Japan, together with the representatives of five other signa- 
tory powers, which powers shall be selected by the general committee by 
a majority vote from time to time in its discretion. Each signatory 
power so represented shall have only one vote and only one representa- 
tive in each of these committees. 

321 


322 THE SENATE AND THE COURT 


The electoral commission shall meet as occasion may require, at The 
Hague or at such other place, and at such times as may be decided upon 
by a majority of the signatory powers, or of their representatives in 
the general committee. 

A regular meeting of the electoral commission shall be held within 
three months preceding the expiration of the term of office of a member 
of the court, and in case a vacancy occurs in the membership of the 
court through the death or resignation or removal of a judge, a meet- 
ing shall be held as soon as practicable after such vacancy occurs. 

The electoral commission shall have a permanent secretary who may 
be the secretary general of The Hague Permanent Court of Ar- 
bitration and shall maintain a permanent office in the international bureau 
of the court, as constituted under The Hague Convention of 1907 for 
the Pacific Settlement of International Disputes. 

The court shall consist of sixteen members—twelve judges and four 
deputy judges. The number of judges and deputy judges may here- 
after be increased by a two-thirds vote of all the members of the gen- 
eral committee upon the proposal of two-thirds of all the members of 
the special committee to a total of fifteen judges and of six deputy 
judges. 

Article 4. The judges and deputy judges of the court shall be selected 
from a list of persons nominated by the national groups in the Perma- 
nent Court of Arbitration, in accordance with the following provi- 
sions : 

In the case of states not represented in the Permanent Court of 
Arbitration, the lists of candidates shall be drawn up by national groups 
appointed for this purpose by their governments under the same con- 
ditions as those prescribed for members of the Permanent Court of 
Arbitration by article 44 of the Convention of The Hague of 1907 for 
the Pacific Settlement of International Disputes. 

Article 5. At least three months before the date of the election the 
secretary general of the Permanent Court of Arbitration shall address 
a written request to the members of the Permanent Court of Arbitration 
belonging to the states participating and to the persons appointed under 
paragraph 2 of article 4, inviting them to undertake, within a given 
time, by national groups, the nomination of persons in a position to 
accept the duties of a member of the court. 

No group may nominate more than four persons, not more than 
two of whom shall be of their own nationality. In no case must the 
number of candidates nominated be more than double the number of 
seats to be filled. 


ANNEX VI A205 


Article 6. Before making these nominations each national group is 
recommended to consult its highest court of justice, its legal faculties 
and schools of law, and its national academies and national sections of 
international academies devoted to the study of law. 

Article 7. The Secretary General of the Permanent Court of Arbitra- 
tion shall prepare a list in alphabetical order of all the persons thus 
nominated. Save as provided in article 12, paragraph 2, these shall be 
the only persons eligible for appointment. 

The Secretary General shall submit this list to each of the signatory 
powers. 

Article 8. The general committee and the special committee of the 
electoral commission shall proceed independently of one another to 
elect, firstly, the judges, then the deputy judges. 

Article 9. At every election the electors shall bear in mind that not 
only should all the persons appointed as members of the court possess 
the qualifications required, but the whole body also should represent 
the main forms of civilization and the principal legal systems of 
the world. 

Article 10. Those candidates who obtain an absolute majority of 
votes in the general committee and in the special committee of the 
electoral commission shall be considered as elected. 

In the event of more than one candidate of the same nationality be- 
ing elected by the votes of both committees the eldest of these only 
shall be considered as elected. 

There shall never be more than one judge or deputy judge of the 
same nationality at the same time. 

Article 11. If, after the first meeting held for the purpose of the 
election, one or more seats remain to be filled, a second and if neces- 
sary a third meeting shall take place. 

Article 12. If, after the third meeting, one or more seats still remain 
unfilled, a joint conference consisting of six members, three appointed 
by the general committee and three by the special committee, may be 
formed at any time at the request of either committee for the purpose 
of choosing one name for each seat still vacant to submit to the com- 
mittees for their respective acceptance. 

If the conference is unanimously agreed upon any person who ful- 
fils the required conditions he may be included in its list, even though 
he was not included in the list of nominations referred to in articles 4 
and 5. 

If the joint conference is satisfied that it will not be successful in 
procuring an election, those members of the court who have already been 


324 THE SENATE AND THE COURT 


appointed shall, within a period to be fixed: by the special committee, 
proceed to fill the vacant seats by selection from amongst those can- 
didates who have obtained votes either in the general committee or in 
the special committee. 

In the event of an equality of votes amongst the judges, the eldest 
judge shall have a casting vote. 

Article 13. The judges shall be elected for a term of nine years, to 
begin on a date fixed by the electoral commission at each election. 
As soon as possible after the first election the judges shall divide 
themselves by lot, as equally as may be, into three classes. The seats 
of the judges of the first class shall be vacated at the expiration of 
the third year, and of the second class at the expiration of the sixth 
year, and of the third class at the expiration of the ninth year, so 
that one-third may be chosen every third year. 

The deputy judges shall be elected for a term of six years, to begin 
on a date fixed by the electoral commission at each election. 

As soon as possible after the first election the deputy judges shall 
divide themselves by lot, as equally as may be, into two classes. The 
seats of the deputy judges of the first class shall be vacated at 
the expiration of the third year, and of the second class at the expir- 
ation of the sixth year, so that one-half may be chosen every third 
year. 

The judges and deputy judges may be reelected. 

Though replaced, they shall finish any cases which have been heard 
but not decided by them. 

Article 14. Vacancies which may occur shall be filled by the same 
method as that laid down for the first election. A member of the 
court elected to replace a member whose period of appointment had 
not expired will hold the appointment for the remainder of his pre- 
decessor’s term. 

Article 15. Deputy judges shall be called upon to sit in the order 
laid down in a list. 

This list shall be prepared by the court and shall have regard, firstly, 
to priority of election; and, secondly, to age. 

Article 16. The judges of the court during their term of office may 
not exercise any political or administrative function. This provision 
does not apply to the deputy judges except when performing their duties 
on the court. 

Any doubt on this point is settled by the decision of the court. 

Article 17. No member of the court can act as agent, counsel, or 
advocate in any case of an international nature. This provision only 


CO 


ANNEX VI 325 


applies to the deputy judges as regards cases in which they are called 
upon to exercise their functions on the court. 

No member may participate in the decision of any case in which he 
has previously taken an active part as agent, counsel, or advocate for 
one of the contesting parties before an international tribunal or com- 
mission. 

Any doubt on this point is settled by the decision of the court. 

Article 18. A judge or deputy judge can be dismissed when in the 
unanimous opinion of the other judges he has ceased to fulfill the 
required conditions. 

A member of the court may be impeached by a two-thirds vote of 
the special committee for failure to fulfill the conditions required of a 
member of the court, and upon such impeachment, and after an op- 
portunity to be heard has been given, he may be removed from office 
by a two-thirds vote of the general committee. 

Formal notification thereof shall be made by the registrar or by the 
secretary of the electoral commission to the signatory powers. 

This notification makes the place vacant. 

Article 19. The judges and deputy judges, when engaged on the 
business of the court, shall enjoy diplomatic privileges and immunities. 

Article 20. Every judge and deputy judge, before taking up his duties, 
shall make a solemn declaration in open court that he will exercise 
his powers impartially and conscientiously. 

Article 21. The court shall elect its president and vice president for 
three years; they may be reelected. 

It shall appoint its registrar. 

The duties of registrar of the court shall not be deemed incompatible 
with those of secretary general of the Permanent Court of Arbitra- 
tion. 

Article 22. The seat of the court shall be established at The Hague. 

The president and registrar shall reside at the seat of the court. 

_ Article 23. A session of the court shall be held every year. 

Unless otherwise provided by rules of court, this session shall begin 
on the 15th of June and shall continue for so long as may be deemed 
necessary to finish the cases on the list. 

The president may summon an extraordinary session of the court 
whenever necessary, and an extraordinary session of the court must be 
convened pursuant to a request made in writing by any two of the 
signatory powers to the registrar, who shall thereupon notify the mem- 
bers of the court. 

Article 24. If for some special reason a member of the court con- 


326 THE SENATE AND THE COURT 


siders that he should not take part in the decision of a particular case 
he shall so inform the president. 

If the president considers that for some special reason one of the 
members of the court should not sit on a particular case, he shall 
give him notice accordingly. 

If in any such case the member of the court and the president dis- 
agree, the matter shall be settled by the decision of the court. 

Article 25. The full court shall sit except when it is expressly pro- 
vided otherwise. 

If twelve judges can not be present, the number shall be made up 
by calling on deputy judges to sit. 

If, however, twelve judges are not available, a quorum of nine 
judges shall suffice to constitute the court. 

Article 26. With a view to the speedy despatch of business, the court 
shall form annually a chamber composed of three judges who, at the 
request of the contesting parties, may hear and determine cases by 
summary procedure. 

Article 27. The court shall frame rules for regulating its procedure. 
In particular, it shall lay down rules for summary procedure. 

Article 28. Judges of the nationality of each contesting party shall 
retain their right to sit in the case before the court. 

If the court includes upon the bench a judge of the nationality of 
one of the parties only, the other party may select from among the 
deputy judges a judge of its nationality, if there be one. If there 
should not be one, or if the party prefers, it may choose a judge, 
preferably from among those persons who have been nominated as can- 
didates as provided in articles 4 and 5. 

If the court includes upon the bench no judge of the nationality of 
the contesting parties, each of these may proceed to select or choose 
a judge as provided in the preceding paragraph. 

Should there be several parties in the same interest, they shall, for 
the purpose of the preceding provisions, be reckoned as one party only. 
Any doubt upon this point is settled by the decision of the court. 

Judges selected or chosen as laid down in paragraphs 2 and 3 of 
this article shall fulfill the conditions required by articles 2, 16, 17, 
20, and 24 of this statute. They shall take part in the decision on an 
equal footing with their colleagues. 

Article 29. The judges shall receive an annual indemnity of 15,000 
Dutch florins. This indemnity must not be decreased during the period 
of a judge’s appointment. 


ANNEX VI 327 


The president shall receive a special annual grant during his period 
of office of 45,000 Dutch florins. 

The vice president shall receive a grant for the actual performance 
of his duties of 150 Dutch florins per day for a period not exceeding 
two hundred days, making a maximum of 30,000 Dutch florins per 
annum; the judges shall receive a grant for the actual performance 
of their duties of 100 Dutch florins per day for a period not exceeding 
two hundred days, making a maximum of 20,000 Dutch florins per an- 
num; and the deputy judges a grant for actual performance of their 
duties of 150 Dutch florins per day for a period not exceeding two 
hundred days, making a maximum of 30,000 Dutch florins per annum. 
The duty allowances are payable from the day of departure until the 
return of the beneficiary. 

Traveling expenses incurred in the performance of their duties shall 
be refunded to judges and deputy judges who do not reside at the 
seat of the court. 

An additional allowance of 50 Dutch fiorins per day is assigned for 
each day of actual presence at The Hague to the vice president, judges, 
and deputy judges. 

Grants due to judges selected or chosen as provided in article 28 
shall be at the same rate as deputy judges. 

The salary of the registrar shall be decided by the court. 

The general committee shall lay down, on the proposal of the special 
committee, a special regulation fixing the conditions under which re- 
tiring pensions may be given to the personnel of the court. 

Article 30. The expenses of the court shall be borne by the signa- 
tory powers in such a manner as shall be decided by a majority of the 
general committee. 


Cuapter [l—Competence of the Court 


Article 31. Only states can be parties in cases before the court. 

Article 32. The court shall be open of right to the signatory powers. 

The conditions under which the court shall be open to other states 
shall, subject to the special provisions contained in treaties in force, 
be laid down by the general committee, but in no case shall such pro- 
visions place the parties in a position of inequality before the court. 

When a state which is not a signatory power is a party to a dis- 
pute, the court will fix the amount which that party is to contribute 
toward the expenses of the court. 


328 THE SENATE AND THE COURT 


Article 33. The jurisidiction of the court comprises all cases which 
the parties refer to it and all matters over which its jurisdiction is 
specially provided for in treaties and conventions in force between the 
parties to the case submitted. 

The signatory powers may, either when signing or ratifying the 
protocol to which the present statute is adjoined, or at a later moment, 
declare that they recognize as compulsory ipso facto and without special 
agreement, in relation to any other state accepting the same obligation, 
the jurisdiction of the court in all or any of the classes of legal dis- 
putes concerning: 

(a) The interpretation of a treaty. 

(b) Any question of international law. 

(c) The existence of any fact which, if established, would constitute 
a breach of an international obligation. 

(d) The nature or extent of the reparation to be made for the breach 
of an international obligation. 

The declaration referred to above may be made unconditionally or 
on condition of reciprocity on the part of several or certain states or 
for a certain time. 

In the event of a dispute as to whether the court has jurisdiction 
under such-declaration, the matter shall be settled by the decision of 
the court. 

Article 34. When a treaty or convention in force provides for the 
reference of a matter to a tribunal to be instituted by the League of 
Nations, the court may take jurisdiction of such matter as between the 
parties to such treaty or convention. 

Article 35. The court, within the limits of its jurisdiction, shall apply 
in the following order: 

1. International conventions, whether general or particular, estab- 
lishing rules expressly recognized by the contesting states. 

2. International custom, as evidence of a general practice accepted 
as law. 

3. The general principles of law recognized by civilized nations. 

4. Subject to the provisions of article 56, judicial decisions and the 
teachings of the most highly qualified publicists of the various nations 
as subsidiary means for the determination of rules of law. 

In cases submitted to the court under special agreements, the court 
shall be bound by the terms of submission. 

Article 36. The: official languages of the court shall be French and 
English. If the parties agree that the case shall be conducted in 
French, the judgment will be delivered in French. If the parties agree 


ANNEX VI 329 


that the case shall be conducted in English, the judgment will be 
delivered in English. 

In the absence of an agreement as to which language shall be em- 
ployed, each party may, in the pleadings, use the language which it 
prefers. The decision of the court will be given in French and Eng- 
lish. In this case the court will at the same time determine which of 
the two texts shall be considered as authoritative. 

The court may, at the request of the parties, authorize a language 
other than French or English to be used. 

Article 37. Cases are brought before the court, by the notification of 
the special agreement, except that cases in which the parties have ex- 
pressly accepted compulsory jurisdiction may be brought before the 
court by a written application addressed to the registrar. In all cases 
the subject of the dispute and the contesting parties must be clearly 
indicated. 

The registrar shall forthwith communicate the application to all 
concerned. 

He shall also notify the signatory powers. 

Article 38. The court shall have the power, to indicate, if it considers 
that circumstances so require, any provisional measures which ought 
to be taken to reserve the respective rights of either party. 

Pending the final decision, notice of the measures suggested shall 
forthwith be given to the parties and the signatory powers. 

Article 39. The parties shall be represented by agents. 

They may have the assistance of counsel or advocates before the 
court. 

Article 40. The procedure shall consist of two parts, written and 
- oral. 

The written proceedings shall consist of the communication to the 
judges and to the parties of cases, countercases, and, if necessary, re- 
plies; also all papers and documents in support. 

These communications shall be made through the registrar, in the 
order and within the time fixed by the court, or as may be provided 
for in the special agreement of submission. 

A certified copy of every document produced by one party shall 
be communicated to the other party. 

The oral proceedings shall consist of the hearing by the court of 
witnesses, experts, agents, counsel, and advocates. 

The agent and counsel of the parties on each side are authorized 
to present orally and in writing to the court arguments in support or 
in defense of each case. 


330 THE SENATE AND THE COURT 


The court shall decide all questions and matters submitted upon 
such evidence and information as may be furnished by the parties 
concerned. 

Article 41. For the service of all notices upon persons other than 
the agents, counsel, and advocates the court shall apply direct to the 
government of the State upon whose territory the notice has to be 
served. 

The same provision shall apply whenever steps are to be taken to 
procure evidence on the spot. 

Article 42. Subject to the provisions of article 45, the hearings shall 
be under the direction of the president; or in his absence, of the 
vice president. If both are absent, the senior judge shall preside. 

All rulings of the court shall be by majority vote of the judges 
present. 

Article 43. The hearing in court shall be public, unless the court 
at the written request of one of the parties, accompanied by a state- 
ment of his reasons, shall otherwise decide. 

Article 44. Minutes shall be made at each hearing and, after ap- 
proval by the agents, signed by the registrar and the president. 

These minutes shall be the only authentic record, except that if an 
official verbatim report of the hearing has been made, it shall also 
form part of the official authentic record. 

Article 45. The court shall make orders for the conduct of the case, 
shall decide the form and time in which each party must conclude 
its arguments, and make all arrangements connected with the taking 
of evidence, subject to any conditions imposed by the special agree- 
ment. 

Article 46. The court may, even before a hearing begins, call upon the 
agents to produce any document or to supply any explanations. Formal 
note shall be taken of any refusal. 

Article 47. The court, with the written approval of the parties, may, 
at any time, intrust any individual, body, bureau, commission, or other 
organization that it may select, with the task of carrying out an in- 
quiry or giving an expert opinion. 

Article 48. During the hearing in court, the judges may put any 
questions, considered by them to be necessary, to the witnesses, agents, 
experts, advocates, or counsel. The agents, advocates, and counsel 
shall have the right to ask, through the sn ea: any questions that 
the court considers useful. 

Article 49. After the Court has received the proofs and evidence 
within the time specified for the purpose, it may refuse to accept any 


ANNEX VI 331 


further oral or written evidence that one party may desire to present 
unless the other side consents. 

Article 50. Whenever one of the parties to a case which has been 
regularly brought before the court shall not appear before the court, 
or shall fail to defend his case, the other party may call upon the 
court to decide in favor of his claim. 

The court must, before doing so, satisfy itself not only that it has 
jurisdiction in accordance with articles 33 and 34, but also that the 
claim is well founded in fact and law. 

Article 51. When, subject to the control of the court, the agents, ad- 
vocates, and counsel have completed their presentation of the case, the 
president shall declare the hearing closed. 

The court shall withdraw to consider the judgment. 

The deliberations of the court shall take place in private and remain 
secret except in so far as it may be necessary to disclose them for a 
dissenting opinion or for the removal or impeachment of a judge. 

Article 52. All questions shall be decided by a majority of the lpdaes 
present at the hearings. 

In the event of an equality of votes, the president or acting president 
shall have a casting vote. 

Article 53. The judgment shall state the reasons on which it is 
based. 

It shall contain the names of the judges waa have taken part in 
the decision. 

Article 54. If the judgment does not represent in whole or in part 
the unanimous opinion of the judges, dissenting judges are entitled to 
deliver separate opinions. 

Article 55. The judgment shall be signed by the President and by 
the registrar. It shall be read in open court, due notice having been 
given to the agents. 

Article 56. The decision of the court has no binding forks except 
between the parties and in respect of that particular case. 

Article 57. The judgment is final and without appeal. In the event 
of dispute as to the meaning or scope of the judgment, the court shall 
construe it upon the request of any party. 

Article 58. An application for revision of a judgment can be made 
only when the court has applied in its decision a theory of international 
law which any general conference of states has refused to recognize 
as a rule of international law, or when it is based upon the discovery 
of some fact of such a nature as to be a decisive factor, which fact was, 
when the judgment was given, unknown to the court and also to the 


332 THE SENATE AND THE COURT 


party claiming revision, always provided that such ignorance was 
not due to negligence. 

The proceedings for revision on the discovery of a new fact will 
be opened by a judgment of the court expressly recording the existence 
of the new fact, recognizing that it has such a character as to lay the 
case open to revision, and declaring the application admissible on this 
ground. 

The court may require previous compliance with the terms of the 
judgment before it admits proceedings in revision on account of a new 
fact. 

The application for revision must be made at. latest within six 
months of the discovery of the new fact. 

No application for revision may be made after the lapse of ten years 
from the date of the sentence. 

Article 59. Should a state consider that it has an interest of a legal 
nature which may be affected by the decision in the case, it may submit 
a request to the court to be permitted to intervene as a third party. 

It will be for the court to decide upon this request. 

Article 60. Whenever the construction of a convention to which states 
other than those concerned in the case are parties is in question, the 
registrar shall notify all such states forthwith. 

Every state so notified has the right to intervene in the proceedings, 
but if it uses this right, the construction given by the judgment will 
‘be equally binding upon it. 

Article 61. Unless otherwise decided by the court, each party shall 
bear its own costs. 


Cuapter 1V—Definitions and Jurisdictional Limitations 


Article 62, The word “state” as used in this statute means only a 
fully self-governing state, and does not include any dominion, colony, 
or other component part of a state. 

Article 63. The words “signatory powers” mean the states which 
sign or adhere to the protocol attached to this statute. 

Article 64. A signatory power may withdraw from the court and 
terminate its obligations under this statute after giving two years’ 
notice of its intention to do so to the secretary of the electoral com- 
mission or to the other signatory powers. 

Article 65. The court shall not have jurisdiction to render advisory 
opinions on any question which affects the admission of aliens into 


ANNEX VI 333 


the United States, or the admission of aliens to the educational institu- 
tions of the several States, or the territorial integrity of the several 
States or of the United States, or concerning the question of the alleged 
indebtedness or moneyed obligation of any State of the United States, 
or any question which depends upon or involves the maintenance of 
the traditional attitude of the United States concerning American 
questions, commonly described as the Monroe doctrine, or other purely 
governmental policy, or any question which is considered by the Gov- 
ernment of the United States to be a domestic question. 

Article 66. The court shall be bound by the principle that international 
law recognizes the authority of the laws of the United States within 
its own jurisdiction as applied to foreigners or to foreign-owned 
property therein, whether in time of peace or war. 

Article 67. Before a case in which the United States is concerned 
can be submitted to the court a special agreement must be concluded 
between the United States and the other parties in interest, defining 
clearly the matter in dispute, the scope of the powers of the court, 
and the periods for the several stages of procedure, and such special 
agreements on the part of the United States can only be made by the 
President of the United States, by and with the advice and consent of 
the Senate thereof. 


ANNEX VII 
Text oF Pepper Resorution (S. Res. 234) 


Whereas the Senate has had under consideration the message from the 
- President of the United States dated February 24, 1923, in which 

the Senate is asked to consent to the signature by the United States 
of the Protocol of December 16, 1920, establishing the Permanent 
Court of International Justice, and has likewise had under con- 
sideration the message from the President of the United States 
dated December 6, 1923, in which this proposal is again commended 
to the favorable consideration of the Senate; and 

Whereas the proposal thus submitted and commended contemplates the 
signature of the Protocol by the United States upon such conditions 
as will enable the United States to give its adherence to the Court 
while remaining wholly free from any legal relationship to the 
League of Nations, and 

Whereas it is desirable to express with greater precision the safe- 
guards suggested in general terms in the message of President 
Harding: Now be it therefore 

Resolved, First: That the Senate approves the pending proposal and 
advises the adherence of the United States to the Permanent Court of 
International Justice upon the terms hereinafter specified. 

Second. That permission to the United sStates to participate in the 
election of future judges should, in the opinion of the Senate, take 
the form of an amendment to those portions of the Statute of the 
Court which prescribe that the election shall be by the Assembly and 
Council of the League of Nations. 

Third. That the Senate advises the President to communicate with 
the States which have adhered to the Court for the purpose of securing 
assent to such amendments to the Protocol and the Statute as will 
accomplish the disassociation of the Court from the League of Nations. 

Fourth. That the Senate advises and consents to the signature by 
the United States of the Protocol of December 16, 1920, when the 
same shall have been amended as specified in the first annex to this 

334 


ANNEX VII 335 


resolution and when amendments shall have been made to the adjoined 
Statute as specified in the second annex hereto. 

Fifth. That the signature of the United States of America shall 
be understood to be affixed subject to the declaration that the United 
States disclaims all responsibility for the exercise by the Court of the 
jurisdiction to render advisory opinions, and subject to the further 
declaration that the United States intends to adhere to the Monroe 
Doctrine as a national policy and assumes no obligations inconsistent 
therewith. 

Sixth. That the signature by the United States herein referred 
to is a signature to the Protocol as set forth in this resolution but not 
to the so-called optional clause referred to in Article 36, paragraph 2, 
of the Statute of the Court. 

Seventh. That the Senate advises the President that a Third In- 
ternational Conference similar to the Hague Conferences of 1899 and 
1907 be called not later than the year 1926 for purposes which shall 
include the giving of effect to the recommendation of the Committee 
of Jurists upon the basis of whose report the Court was established, 
regarding the clarification and further development of international 
law, and the codification thereof. 


First ANNEX TO THE RESOLUTION—“PROTOCOL OF SIGNATURE” 


“The Signatories of this Protocol, through the undersigned, duly 
authorized, declare their acceptance of the adjoined Statute of the 
Permanent Court of International Justice, and hereby declare that they 
accept the jurisdiction of the Court in accordance with the terms and 
subject to the conditions of the above-mentioned Statute. 

“The present Protocol shall be deposited, after ratification, with the 
Secretary General of the Permanent Court of Arbitration at The 
Hague. : 

“The said Protocol shall remain open for signature by all nations 
generally recognized by treaty or diplomatic relations with the 
Signatories. 

“The adjoined statute shall come into force as an amendment of 
or substitute for the existing statute as soon as all the Signatories 
of the protocol of 16 December 1920 shall have deposited their assent 
thereto with the Secretary General of the Permanent Court of Arbitra- 
tion at The Hague in a single copy, the French and English texts of 
which shall both be authentic.” 


336 THE SENATE AND THE COURT 


SECOND ANNEX TO THE RESOLUTION—A. SUBSTANTIVE AMENDMENTS 
TO THE ADJOINED STATUTE 


(1) Strike out Article 4 and substitute a new article as follows: 

“ArTIcLE 4. The present judges and deputy-judges constituting the 
Permanent Court of International Justice shall retain their offices 
under the Statute of the Court.” 

(2) Strike out the first paragraph of Article 5 and substitute the 
following : 

“ARTICLE 5. Vacancies which occur either by expiration of term or 
otherwise shall be filled by the States. which at that time are Signatories 
to the Protocol. At least three months before the date of an election 
to fill any such vacancy the Secretary-General of the Permanent Court 
of Arbitration shall address a written request to the Members of the 
Permanent Court of Arbitration, inviting them to undertake, within 
a given time, by national groups, the nomination of persons in a 
position to accept the duties of a member of the Court.” 

(3) Strike out Article 8 and substitute a new article as follows: 


“ArTICLE 8. Representatives of all the Signatories to this Protocol 
shall meet at such time and place as may be designated by the said 
Secretary General and shall proceed to an election. The representa- 
tives of all Signatories shall ballot as an electoral assembly. The 
States named in the Versailles Treaty as the Principal Allied and 
Associated Powers, together with such five of the other Signatory States 
as shall be selected by the Signatories shall ballot as a separate electoral 
council. The Assembly of Signatories and the Council of Signatories 
shall proceed independently of one another to elect, first the judges, then 
the deputy judges. In each electoral body each Signatory State shall 
have one vote, but not more than one vote shall be cast in either As- 
sembly or Council by the British Empire and the States included therein.” 

(4) Strike out Article 10 and substitute a new article as follows: 

“ARTICLE 10. Such nominee as shall receive a majority of votes in 
the electoral Assembly and a majority of votes in the electoral Council 
shall be elected a judge or deputy judge, as the case may be. 

“In the event of more than one national of the same Signatory State 
being elected by the votes of both the Assembly and the Council, the 
eldest of these only shall be considered as elected.” 

(5) Strike out Article 34 and substitute a new article, as follows: 

“ARTICLE 34. Only States can be parties in cases before the Court.” 

(6) Strike out Article 35 and substitute a new article as follows: 


ANNEX VII 337 


“ARTICLE 35. The Court shall be open to all States generally recog- 
nized by treaty or diplomatic relations with the Signatories. 

“When a State which is not a Signatory is a party to a dispute the 
Court will fix the amount which that party is to contribute toward 
the expenses of the Court.” 


iB. FoRMAL AMENDMENTS TO CARRY THE FOREGOING INTO EFFECT 


(1) In the following articles strike out “Assembly” (or “Assembly 
of the League of Nations”) and “Council” (or “Council of the League 
of Nations’) and substitute “Assembly of Signatories” or “Council of 
Signatories,” as the case may be: Articles 3, 12, 32, and 41. 

(2) In the following articles strike out “Member of the League 
of Nations” and substitute “Signatory State’: Articles 26 and 27. 

(3) In the following articles strike out “The Secretary-General of 
the League of Nations” and substitute “The Secretary-General of The 
Permanent Court of Arbitration”: Articles 7: and 18. 

(4) In Article 1, after “established,” substitute a period for a 
comma and strike out “in accordance with Article 14 of the Covenant 
of the League of Nations.” 

(5) In Article 7 strike out the last six words and substitute “each 
of the Signatories.” 

(6) Transfer the last two paragraphs of Article 12 to a new article 
to be numbered Article 13. 

(7) Strike out in Articles 12 and 31 “Articles 4 and 5,” and substi- 
tue “Article 5.” 

(8) Strike out the first sentence of Article 14 and transfer the 
residue of the Article so that it shall become the last sentence in Article 
5 as amended. 

(9) In Article 36 strike out the first seventeen words of paragraph 2 
and substitute “a State,” and for the words “they recognize” in the same 
paragraph substitute ‘it recognizes.” 

(10) In Article 40 strike out the last paragraph. 


ANNEX VIII 
Tue Court’s JURISDICTION 
A.—Peace Treaties. 


The Treaty of Versailles—June 28th, 1919. Transit and Labour. 

The Treaty of St. Germain——September toth, 1919. Transit, La- 
bour and Minorities. 

The Treaty of Neuilly—September 27th, 1919. Transit, Labour and 
Minorities. 

The Treaty of Trianon—June 4th, 1920. Transit, Labour and Mi- 
norities. 

The Treaty of Lausanne (January 30th, 1923) and annexed declara- 
tions.—July 24th, 1923. Minorities, transit; appointment of neutral 
members of Mixed Arbitral Tribunals; appointment of legal counsellors 
to Turkish courts; appointment of an umpire on compensation payable 


by Greece to Allied Nationals. 


B.—Clauses concerning the protection 


Albania Declaration before 
the Council of the 
League of Nations. 
Armenia Treaty with the 
Principal Allied and 
Associated Powers. 
Austria Treaty with the Al- 
lied and Associated 
Powers (Art. 69). 
Bulgaria Treaty with the Al- 
lied and Associated 
Powers (Art. 57). 
Danzig Convention between 
Poland and the Free 
City of Danzig. 
338 


of Minorities. 


Geneva, 
October 2nd, 1921. 


Sévres, 
August Ioth, 1920. 


St.-Germain-en- 
Laye, September roth, 
1919. 

Neuilly-sur-Seine, 
November 27th, 19109. 


Paris, 
November 9th, 1920. 


Esthonia 


Finland 


Greece 


Hungary 


Latvia 


Lithuania 


Poland 


Roumania 


Serb-Coat-Slovene 


State 


Czechoslovakia 


Turkey 


ANNEX VIII 


Resolution of the 
Council of the League 
of Nations. 

Agreement between 
Finland and Sweden 
relating to the Aaland 
Islands, annexed to a 
Council resolution. 

Treaty with the 
Principal Allied and 
Associated Powers. 

Treaty with the Al- 
lied and Associated 
Powers (Art. 60). 

Declaration before 
the Council of the 
League of Nations. 

Declaration before 
the Council of the 
League of Nations. 

Treaty with the 
Principal Allied and 
Associated Powers. 

Treaty with the 
Principal Allied and 
Associated Powers. 

Treaty with the 
Principal Allied and 
Associated Powers. 

Treaty with the 
Principal Allied and 
Associated Powers. 

Treaty of Peace 
(Art. 44). 


339 


Geneva, 
September, 17th, 1923. 


Paris, 
June 24th, 1921. 


Sévres, 
August roth, 1920. 


Trianon, 
June 4th, 1920. 


Geneva, 
July 7th, 1923. 


Geneva, 
May 12th, 1922. 


Versailles, 
June 28th, 1919. 


Paris, 
December gth, 1919. 


St.-Germain-en- 
Laye, September 1oth, 
I9I9Q. 

St.-Germain-en- 
Laye, September roth, 
IQI9Q. 

Lausanne, 

July 24th, 1923. 


C.—Mandates for various colonies and territories entrusted to cer- 
tain Members of the League of Nations under Article 22 of the Cov- 


enant, 


South Africa (in the 
name of His Britan- 


nic Majesty) 


Former German 
Protectorate of south 
West Africa. 


Geneva, 
December 17th, 1920. 


340 


Australia (in the 
name of His Brit- 
tanic Majesty) 


Belgium 


British Empire 


9? ” 


9 93 


New Zealand (in the 
name of His Brit- 
tannic Majesty) 


Former German 
Possessions in the Pa- 
cific situated south of 
the Equator and other 
than German Samoa 
and Nauru. 

Part of the terri- 
tory of the former 
Colony of German 
East Africa. 

Island of Nauru. 


Western Part of the 
Cameroons. 

Part of the terri- 
tory of the former 
Colony of German 
East Africa. 

Western Part of 
Togoland. 

Palestine. 


Eastern Part of the 
Cameroons. 
Eastern 
Togoland. 

Syria and Lebanon. 


Part: of 


Former German is- 
lands in the Pacific 
Ocean to the north of 
the Equator. 

Former German 
Colony of Samoa. 


THE SENATE AND THE COURT 


Geneva, 
December 


London, 
July 2oth, 


Geneva, 
December 
London, 
July 2oth, 
London, 
July 2oth, 


London, 
July 2oth, 
London, 
July 24th, 
London, 
July 20th, 
London, 
July 2oth, 
London, 
July 24th, 
Geneva, 
December 


Geneva, 
December 


D.—General International Agreements. 


17th, 1920. 


1922. 


17th, 1920. 
1922. 


1922. 


1922. 
1922. 
1922. 
1922. 
1922. 


17th, 1920. 


17th, 1920. 


Convention for the control of the trade in arms and ammunition.— 
Paris, September toth, 1919. Provides that any dispute between the 


ANNEX VIII 341 


parties shall be settled by an arbitral tribunal in conformity with the 
provisions of the Covenant. 

Convention relating to the Liquor Traffic in Africa—St.-Germain-en- 
Laye, September 1oth, 1919. Provides that any dispute between the 
parties shall be settled by an arbitral tribunal in conformity with the 
provisions of the Covenant. 

Convention on aerial navigation.—Paris, October 13th, 1919. Obliga- 
tory for disputes relating to its interpretation. 

Convention and Statute on Freedom of Transit—Barcelona, April 
20th, 1921. Optional on disputes concerning its interpretation and ap- 
plication. Precedence given to the Advisory and Technical Committee 
of the League. 

Convention and Statute on the régime of Navigable Waterways of 
International Concern.—Barcelona, April 2oth, 1921. Optional on dis- 
putes concerning its interpretation and application. Precedence given 
to the Advisory and Technical Committee of the League. 

Convention on the Statute of the Danube.—Paris, July 23rd, 1921. 
Appellate, against decisions of the International Commission. 

Statute of navigation of the Elbe—Dresden, February 22nd, 1922. 
Appellate on decisions of the International Commission. 

Convention for the suppression of the circulation of and traffic in 
obscene publications—Geneva, September 12th, 1923. Obligatory for 
signatories to the Court Statute; optional for others. 

International Convention for the simplification of Customs Formali- 
ties—Geneva, November 3rd, 1923. Appellate from a technical com- 
mittee appointed by the League; obligatory on interpretation and ap- 
plication of certain provisions, 

Convention and Statute on the international régime of Railways.— 
Geneva, December oth, 1923. Optional. 

Convention and Statute on the international régime of Maritime Ports. 
—Geneva, December goth, 1923. Obligatory on equality of treatment; 
optional on interpretation and application. 

Convention relating to the transmission in transit of Electric Power.— 
Geneva, December oth, 1923. Optional. _ 

Convention relating to the development of Hydraulic Power affecting 
more than one State-—Geneva, December 9th, 1923. Optional. 

Convention relating to Opium Traffic—Geneva, February 19th, 1925. 
Optional; in cases where the decision of the Court on questions of 
international law or interpretation of the convention is declared es- 
sential, obligatory. 


342 THE SENATE AND THE COURT 


E.—Political Treaties (of alliance, commerce, navigation and others), 


Agreement between Finland and Sweden with regard to the Aaland 
Islands; Annex to Resolution of the Council of the League of Nations.— 
June 24th, 1921. Advisory opinions to be requested through the Coun- 
cil of the League. 

Convention between Denmark and Norway concerning aerial naviga- 
tion —Copenhagen, July 27th, 1921. Obligatory as to its interpretation 
and application. 

Treaty of Commerce and Navigation between Esthonia and Finland.— 
Helsingfors, October 29th, 1921. Optional. 

Political Agreement between the Federal Republic of Austria and the 
Czechoslovak Republic—Prague, December 16th, 1921. Optional. 

Political Agreement between Esthonia, Finland, Latvia and Poland — 
Warsaw, March 17th, 1922. Optional. 

Polish-German Agreement with reference to Upper Silesia.—Geneva, 
May 15th, 1922. Obligatory on legislation and expropriations; interven- 
tion by League on minorities. 

Commercial Convention between Switzerland and Poland—wWarsaw, 
June 26th, 1922. Optional. 

Treaty of Commerce between Latvia and Czechoslovakia.—Prague, 
October 7th, 1922. Appointment of arbiter. 

Treaty between Great Britain and Mesopotamia.—Bagdad, October 
1oth, 1922. Obligatory as to interpretation. 

Treaty of Commerce between Esthonia and Hungary.—Reval, October 
19th, 1922. Appointment of umpire. 

Commercial Convention between the Netherlands and Czechoslovakia.— 
The Hague, January 2oth, 1923. Obligatory. 

Convention between Norway and Sweden concerning aerial naviga- 
tion —Stockholm, May 26th, 1923. Obligatory as to interpretation and 
application. 

Treaty of Defensive Alliance between Esthonia and Latvia. Tallinn, 
November Ist, 1923. Optional. 

Convention concerning the organization of the Tangiers Zone.—Paris, 
December 18th, 1923. Optional. 

Treaty of Alliance and Friendship between France and Czecho- 
slovakia.—Paris, January 25th, 1924. Optional. 

Convention between Finland and Norway.—Christiania, April 28th, 
1924. Optional. 

Convention concerning the transfer of the Memel territory—Paris, 


ANNEX VIII 343 


May 8th, 1924. Obligatory on questions concerning law or fact; op- 
tional under clauses concerning ports and transit. 

Convention between Denmark and Norway regarding Eastern Green- 
land.—Copenhagen, July oth, 1924. Obligatory. 

Convention between the United States of America and the Nether- 
lands respecting the regulation of the Liquor Traffic—Washington, 
August 21st, 1924. Obligatory. Not in effect pending United States’ 
adherence to the Court. 

Agreements between the Allied Governments, the German Government 
and the Reparations Commission.—London, August 30th, 1924. Obliga- 
tory on disputes relating to the agreement; appointment of arbitrators 
provided for in seven instances. 

Treaty of Commerce and Navigation between Denmark and Latvia.— 
Riga, November 3rd, 1924. Obligatory in cases of revision of decisions 
of the arbitration tribunal; appointment of arbitrators. 

Treaty of Commerce and Navigation between Germany and Great 
Britain—London, December 2nd, 1924. Optional. 

Treaty of Mutual Guarantee—Locarno, October 16th, 1925. Obliga- 
tory on questions as to rights of parties; not yet in effect pending 
ratification. 


F.—Treaties of Arbitration and Conciliation. 


Agreement relating to arbitration between Austria and Hungary.— 
Budapest, April roth, 1923. Optional. 

Agreement for the renewal of the Arbitration Convention between the 
United States of America and the British Empire—Exchange of let- 
ters; Washington, June 23rd, 1923. Not in effect, pending United 
States’ adherence to the Court. 

Agreement for the renewal of the Arbitration Convention between the 
United States of America and France.—Exchange of letters; Washing- 
ton, July roth, 1923. Not in effect, pending United States’ adherence 
to the Court. 

Agreement for the renewal of the Arbitration Convention between the 
United States of America and Japan.—Exchange of letters; Washing- 
ton, August 23rd, 1923. Not in effect, pending United States’ adherence 
to the Court. 

Agreement for the renewal of the Arbitration Convention between the 
United States of America and Norway.—Exchange of letters; Washing- 
ton, November 26th, 1923. Not in effect, pending United States’ adher- 
ence to the Court. 


344 THE SENATE AND THE COURT 


Agreement for the renewal cf the Arbitration Convention between the 
United States of America and the Netherlands.—Exchange of letters; 
Washington, February 13th, 1924. Not in effect, pending United States’ 
adherence to the Court. 

Treaty of Conciliation between Sweden and Switzerland.—Stockholm, 
June 2nd, 1924. Optional; preference given to a Permanent Concilia- 
tion Commission; appointment of members of the Permanent Conciliation 
Commission. 

Treaty of Conciliation between Denmark and Switzerland.—Copen- 
hagen, June 6th, 1924. Optional; preference given to a Permanent Con- 
ciliation Commission ; appointment of members of the Permanent Concili- 
ation Commission. 

Treaty of Conciliation and Arbitration between Hungary and Switzer- 
land.—Budapest, June 18th, 1924. Optional; obligatory if no arbitral 
tribunal has been constituted six months after notification. 

Treaty concerning the Judicial Settlement of disputes arising between 
Brazil and Switzerland—Rio de Janeiro, June 23rd, 1924. Optional; 
obligatory if no agreement for settlement is reached six months after 
notification. 

Convention between Denmark and Sweden concerning the establish- 
ment of a Conciliation Commission.—Stockholm, June 27th, 1924. Op- 
tional; appointment of the chairman of the Conciliation Commission. 

Convention between Denmark and Norway concerning the establish- 
ment of a Conciliation Commission—Stockholm, June 27th, 1924. Op- 
tional; appointment of the chairman of the Conciliation Commission. 

Convention between Denmark and Finland concerning the establish- 
ment of a Conciliation Commission—Stockholm, June 27th, 1924. Op- 
tional; appointment of the chairman of the Conciliation Commission. 

Treaty of Arbitration and Conciliation between Germany and Sweden. 
—Exchange of letters; Berlin, August 29th, 1924. 

Treaty of Arbitration and Conciliation and Judicial Settlement be- 
tween Italy and Switzerland—Rome, September 20th, 1924. Appellate 
from the decisions of a Permanent Conciliation Commission; obliga- 
tory if within three months from notification no agreement for settle- 
ment is reached. 

Treaty of Conciliation between Austria and Switzerland—Vienna, 
October 11th, 1924. Optional; preference given to conciliation. 

Agreement for the renewal of the Arbitration Convention between the 
United Kingdom and Sweden.—Exchange of letters; London, November 


oth, 1924. 


ANNEX VIII 345 


Treaty of Judicial Settlement between Japan and Switzerland.—T okio, 
December 26th, 1924. Optional. 

Treaty of Conciliation and Judicial Settlement between Belgium and 
Switzerland—Brussels, February 13th, 1925. Obligatory in case of 
failure of conciliation and as to interpretation; appointment of the 
President of the Permanent Conciliation Commission, 

Treaty of Conciliation and compulsory arbitration between France 
and Switzerland.—Paris, April 6th, 1925. Optional; preference given 
to a Permanent Conciliation Commission; obligatory in case of failure 
of conciliation, and as to the application of the Treaty. 

Treaty of Conciliation and Arbitration between Czechoslovakia and 
Poland—wWarsaw, April 23rd, 1925. Optional; obligatory as to inter- 
pretation. 

Agreement for the renewal of the Arbitration Convention between the 
United Kingdom and Norway.—Exchange of letters; London, May 
13th, 1925. 

Treaty between Germany and Czechoslovakia.—Locarno, October 16th, 
1925. Optional, on questions concerning rights of parties; preference 
given to a Permanent Conciliation Commission. Not yet in effect, 
pending ratification. 

Treaty between Germany and Poland.—Locarno, October 16th, 1925. 
Optional, on questions concerning rights of parties; preference given to 
a Permanent Conciliation Commission. Not yet in effect, pending ratifi- 
cation. 

Treaty between Germany and France—Locarno, October 16th, 1925. 
Optional, on questions concerning rights of parties; preference giver 
to a Permanent Conciliation Commission. Not yet in effect, pending 
ratification. 

Treaty between Germany and Belgium.—Locarno, October 16th, 1925. 
Optional on questions concerning rights of parties; preference given to 
a Permanent Conciliation Commission. Not yet in effect, pending 
ratification, 


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INDEX 


Aaland Islands, advisory op., 108; 
dispute, 177. 

Academy of International Law, 4, 
204. 

Access to Court, British Dom., 
52; mem. of League, 53; through 
advisory op., 53; individuals, 54; 
mandates, 55; Annex to Cov., 55; 
declarations, 57; under Treaties, 
59; decision by Court, 61; and 
ene Ree 3. 

Adatci, M., 2. 

Advisory Committee of Jurists, 2, 
4, 14, 19; oblig. juris., 4, 64, 76, 
83; provisional meas., 27; elec- 
tion of judges, 35; national 
judges, 44; access to Court, 53, 
58; U. S. A. privileges, 56; non- 
judicial matters, 92; adv. op., 
109; int. law, 202, 204, 211, 212; 
sanctions, 213. 

Advisory opinions under Covenant, 
dissenting, 47, 48, 112; and Art. 
36 of Stat., 90; workers dele- 
gate, 109, I10, 152; agricultural 
labor, 153, 259; agricultural pro- 
duction, 154, 260; nationality 
decrees, 109, I10, I19, 120, 183, 
261; Eastern Carelia, 109, 120, 
124, 1690, 262; German settlers, 
89, 109, 118, 263; acquisition of 
Potish: siat., 117; 118, '120;,°206; 
Polish-Czech boundary (Jawor- 
Zina) 100,. 120,,. 267° > Saint 
Naoum, 109, 118, 120; exchange 
of populations, 109, 270; Dan- 
zig Postal Service, 118, | 272; 
Iraq, 109, 184, 274; Patriarch, 


124, 274; list of, 112; see Juris- 
diction, advisory. 

Advisory opinions in U. S.: fed- 
eral, 126; state, 127; derivation, 
134; restrictions, 134; by jus- 
tices, 135; limitations, 135; con- 
struction of, 137; discretionary, 
138; not binding, 139; non- 
judicial, 142; not analogous, 144. 

Albania, 8, 9; disputes, 71, 78, 
177, 181, 182, 184, 268. 

Altamira, M., 2, 20, 37. 

Amendments of Statute, 11, 14, 15; 
AL ear ag! ce, 

American Federation of Labor, 
156. 

American Institute of International 
Law, 205. 

American Society of International 
Law, 210. 

Anzilotti, M., 37, 47, 164. 

Arbitration, special tribunals, 18, 
239; tr. and conv., 18, 80, 84; 
and U. 8. A., 91; compulsory, 
194. 

Argentina, 10, 53, 107, 214. 

Assembly, 1, 6, 35; rights of, 5, 
ETL Bab aes! (OO, 72,0 tek TOA, 
107, 171, 182, 207; see League 
of Nations. 

Australia, 8. 

Austria, 9, 53; optional clause, 609; 
at tr., 84, 85; disputes, 177, 
181. 


Baker, P. J. Noel, cited, 110, 111. 
Balfour, Lord, 65. 


Barbosa, M., 34, 35, 37, 47, 164. 


347 


348 


Beichman, M., 37. 

Belgium, And optional clause, 69; 
Locarno tr., 81, 186; security 
tr ISO. 22k. 

Bénés, M., 72. 

Blockade Commission, 218. 

‘Bolivia, 10. 

Borah, Mr., Outlawry of war, 76, 
IQI, 197; code int. law, 207, 211. 

Borchard, Prof., cited, 246. 

Bourgeois, M., cited, 2, 3, 11, 65, 
200; report by, 5; election of 
judges, 38; sanctions, 213. 

Brazil, 8, 40, 69. 

Bulgaria, 8, 9; nat. judges, 48; 
optional clause, 69; disputes, 178, 
181, 182. 

Bustamente, M. de, 37. 


Caloyanni, M., 48. 

Canada, 8. 

Cardoza, Justice, cited, 143. 

Cecil, Viscount, 101, 106; out. of 
war, 194; int. law, 207. 

Chile, Io. 

China, 8, 69, 97, 98. 

Choate, Mr., 44, 76. 

Colombia, 10. 

Commissions, on conciliation, 18, 
81, 84, 187, 230. 

Conference of Ambassadors, Adv. 
op., 17, 82, 98, 109, 118, 267, 
268; disputes, 177, 178, 180; 
sanctions, 120, 220. 

Conventions, Germano-Polish, 59, 
62, 80, 83, 88; transit, 79, 85, 
86; political, 80; British-Iraq, 
80; arb., 80; London agreement, 
81, 95; Locarno, 81; Barcelona, 
86, 159; Memel, 89; see also 
Hague Conferences. 

Coolidge, President, 39, 229, 230. 

Costa Rica, 10, 53, 69, 71. 

Council, 1, 12, 56; rights of, 2, 5, 
14, 35, 38, 56, 82, 90, 93, 104, 


INDEX 


107, 108, 110, I12, 114, 166, 173, 
182; and prevention of war, 176, 
180; int. law, 207; sanctions, 
214, 221, 223; see also League of 
Nations. 

Covenant, and Satute, 1, 10, 13, 17, 
29, 38, 05, 104, 112, 117, 120; 
prev. of war, 176; int. law, 203; 
sanctions, 14, 213, 217, 220; and 
oblig. juris., 65; Art. 1, 10; Art. 
ATI ESOATE A 5 Ula Ts Arty roe 
VOT ATL 11, 2.92 dO sre 
Art, 12,°65,°85, 182, 214,\ 247° 
Art. 13, 17, 65, 67, 85, 183, 215, 
241; Art. 14, I, 17, 39, 60, 64, 
65, 82,104; 117, 2422) Arta. 
82, 90, III, 166, 184, 187; Art. 
16, 82, 242; Art. 17, 56, 58, 113; 
167, 169, 174, 242; Art. 18, 54, 
82; Art. 19, 54, 82; Art. 20, 204; 
Art. 21, 82; Art. 22,°70, 

Cuba, 8. 

Czechoslovakia, treaties, 84, 85, 
186, 221; minorities, 87; dis- 
putes, 178, 267; Little En- 
tente, 186. 


Danzig, 21, 55; nat. judges, 49; 
disputes, II0, 272. 

Democratic platform, 227. 

Denmark, 8, 12, 69, 79, 84. 

Descamps, Baron, 2. 

Domestic Questions, and Council, 
12; immigration, 94, 123; debts, 
93, 123, 243; Lodge Res., 166; 
adv. op., 168; Geneva Protocol, 
171; Japanese amend., 172, 237, 
243. 

Dominican Republic, 69. 


Eastern Carelia, 49, 62, 109, 178, 
236, 262. 

Ecuador, 10. 

Egypt, 55. 

Esthonia, 8, 9, 69, 85, 108, 186. 


INDEX 


Exchange Greek-Turkish Popula- 
tions, 2I, 49, 109, 270. 

Extra-territoriality, 97, 98, 
236. 


102, 


Fernandez, M., 2, 164. 

Financial Regulations, 6, 21, 238, 
244, 254. 

Finland, 8, 9, 69, 85, 108, 177, 178, 
262. 

Finlay, Lord, 20, 37, 47, 277. 

Fiume, 60, 180. 

France, 8, 40; access to Court, 55; 
optional clause, 69, 73; treaties, 
81, 84, 86, 91, 186, 221; disputes, 
109, 183; U. Silesia, 177; Riffs, 
180. 


Germany, 40, 53; Wimbledon, 47, 
59, 203, 220, 276; op. clause, 71; 
treaties, 81, 186, 221; settlers in 
Poland, 49, 89, 263, 266; sanc- 
tions, 223; interests in U. Silesia, 
204. 

Great Britain, 8, 40; Irish Free 
State, 52; access to Court, 53, 
55; Ruhr, 72; optional clause, 
73; treaties, 81, 91, 186, 221; 
and adv. op., 105, 134; Aaland 
Islands, 177; .U. Silesia, 177; 
Iraq, 178, 184, 274; Nat. De- 
crees, 109, 183, 261; Mavrommat- 
is, 216, 277. 

Greece, 8, 48; treaties, 87; dis- 
putes, 98, 178, 179, 181, 182, 
270, 274. 

Guatemala, 10. 


Hagerup, M., 2. 

Hague Conferences, Third, 4, 204; 
of 1907, 38, 44, 54, 76, 81, 202, 
207. 

Haiti, 8, 60. 

Hammarskjoéld, M., 20. 

Harding, Mr., 16, 23, 121; adv. op.. 


349 


122, 197, 225, 228; election of 
judges, 228; expenses of Court, 
220. 

Harding-Hughes plan, amend- 
ments, 16, 28, 228; expenses, 23, 
228; org. of Court, 28; nom. of 
judges, 34; election of judges, 
30, 43, 228; op. clause, 75, 228; 
adv. op., 121; outlawry of war, 
197; sanctions, 225; text of, 228, 
310; acceptance of by President, 
229; U. S. A., protection, 235. 

Hedjaz, 186. 

High Court of Justice, 4. 

Honduras, 10. 

Huber, M., 20, 37, 164. 

Hughes, Mr., 16, 23, 30, 75, I2I, 
197, 225, 310. 

Hungary, 8, 9, 53; optants, 72, 89, 
178, 180; treaties, 84, 186; Bur- 
genland, 177, 181; sanctions, 221. 

Hymans, M., cited, 22. 


Iberian Inst. of Int. Law, 204. 
Immigration, 93, 123, 167; agenda 
of I. L. O., 169; Jap. amend., 


174. 
India, 8. 
Institute of Int. Law, 205. 
International Labor Office, nat. 


judges, 48; access to Court, 54, 
61, 107; jurisdiction of Court, 
77, 83, 150, 237; and adv. op, 
107, I10; disputes, 100, I5I, 153, 
258, 261; organization, 20, 146; 
gen. conf., 147; sanctions, 149, 
223; injunctions by advice, 153; 
Am. Labor, 155; Res. Am. Fed. 
Labor, 156; immigration, 169; 
and Treaty, 220, 223. 
International Law, adv. op., 114, 
125; conventional, 198; custo- 
mary, 198; gen. prin. of, 199; 
judicial decisions, and teachings, 
199; precedents, 199; ex aequo et 


350 


bono, 201; oblig. juris., 202; and 
Adv. Com., 204; text of rec. of 
Adv. Com., 206; progressive 
codification, 207; com. on, 209; 
and U. S., 248. 

International Law Assn., 204. 
Iraq, 21, 49, 55, I10, 112, 178, 184, 

ey oe 

Irish Free State, 52. 

Ilato-Greek dispute, 98, 102, 183. 

Italy, 8, 40; disputes, 71, 98, 107, 
181, 182; treaties, 81, 84, 183, 
186, 221. 


Japan, 8, 40; treaties, 91; immigra- 
tion, 93; amend. to Protocol, 
T7230: 

Jaworzina, 49, 82, 109, 182, 201. 

Jay, Mr. John, 126. 

Judges, org. of Court, 18, 20; 
duties, 19; nomination of, 29; 
election of, 6, 35, 228, 243, 244; 
removal of, 37; rep. of League, 
38; national, 44, 50; personnel, 
246. 

Judgments, 25, 116, 118; S. S. 
“Wimbledon,” 47, 59, 78, 118, 
162, 220, 276; Mavrommatis Con- 
cessions, 21, 47, 55, 62, 118, 216, 
277; Tr. of Newilly, 280; Ger- 
man int. in U. Silesia, 274; list 
of, 144. 

Jurisdiction, general, 2, 77, 80, 83, 
90, 163; under draft Scheme, 6; 
sanctions, 13; procedure, 25; 
questioned, 62; non-judicial, 62, 
92, 96, 98, 137, 245; optional, 84, 
355) 87 59, (157) 161, 

Jurisdiction, advisory, text of Art. 
14, 1; in draft Scheme, 6; com. 
on arb., 12, 104; policies, 15; 
Conf. of Ambass., 17, 82; pro- 
ceedings, 26; nat. judges, 40, 
238; access to Court, 53, 60, 61; 
Swanson Res., 63, 226; minor- 


INDEX 


ities, 83, 108, 117; and treaties, 
90; and oblig. juris., 90; and 
non-judicial matters, 93; British 
origin of, 105; Geneva Proto- 
col, 107, 110; consent of parties, 
109; submissions, I11; discre- 
tionary, I12; mandatory, 112; 
conclusions of Court on, 113; 
view of Council, 114; rules 
of Court, 115; publicity, 112, 
116; procedure, 116; judicial 
function, 117; intervention, 117; 
part of award, 119; not bind- 
ing, I19; applicability, 120; and 
judgments, 121; prec. of E. 
Carelia, 124, 201; compar. with 
in Os Ses" dom: i anes 
tions, 168; ex aequo et bono, 202; 
sanctions, 223. 

Jurisdiction, obligatory, 6, 17, 64, 
71; defeat by great Powers, 65; 
under treaties, 81, 162; optional 
clause, 66, 74; rel. to labor, 77, 
83, 109, I51, 153; rel. to transit, 
78, 157, 161; under mandates, 
79; pol. conven., 80, 159; and 
int. law, 202; and U. S., 76, 246. 


King, Mr., Res., 30. 
Knox, Mr., on dom, questions, 167; 
outlawry of war, IOI. 


Labor, see Am. Fed. and Int. 
Labor Office. 

Lapradelle, de M., 2, 3. 

Latvia, 8, 9, 69, 85, 108, 186. 

League of Nations, Relation to 
Courty4.°7,' O11, 12, TA senate. 
27,29, 32, 39,) 46; '52,'/'56) 158, 
68, 89, 185, 230, 235, 255; and 
Protocol, 7, 14; and_ with- 
drawals, 9, 10; non-members of, 
9, 15, 23, 28, 56, 63, 75, 91, 102, 
121,124, 4/1745"; 184, ages 
access of mem., 53; intervention 


INDEX 


by, 80, 86, 80, 155, 161, 165; 
adv. op., 134 ff., 151; dom. ques- 
tions, 167, 168; prevention of 
war, 176, 183, 239; com. on int. 
law, 203; sanctions, 213; com. on 
separation of Court from, 28, 
40, 233; and U. S., 241; expenses 
of, 244. 

Lenroot, Mr., 39, 43, 233. 

Levinson, Mr., 193. 

Liberia, 10, 70. 

Lithuania, 8, 9; Vilna, 50, 71, 70, 
181; optional clause, 70; Memel, 
89, 178, 181. 

Loder, Mr., 2, 20. 

Lodge, Mr., 28, 37, 43; Res. 40, 
220 pads adv) opi) 2220" dam, 
questions, 166, 170; on Covenant, 
125, 190. 

Luxemburg, 10, 70. 


Mandates, 79, 216; see also juris- 
diction. 

Marshall, Mr. John, cited, 126. 

Mavrommatis-Jerusalem Conces- 
sions, 21, 47, 55, 62, 216, 277; 
see also Great Britain. 

Memel, see Lithuania. 

Mexico, 9. 

Miller, Justice, cited, 143. 


Minorities, 55, 83, 87, 108, 216; 
see also Jurisdiction. 

Mixed arbitral tribunals, 18, 81, 
84, 93, 94. 

Monroe Doctrine, 167, 171, 101, 
242. 

Moore, Mr., 37, 164; Art. 36 of 
Stat., 93; conclusions by, 113, 


II5, 124, 237. 


Nansen, Dr., cited, 22. 
Negulesco, M., 37. 
Netherlands, 70, QI, I00, ait 
New Zealand, 8. 

Nicaragua, Io. 


351 


Nominations, judges, 29; arbitra- 
tors, 94; legal counsellors, 96. 
Non-members, sce League of 

Nations. 
Norway, 8, 70, 79. 
Nyholm, M., 37, 164. 


Oda, M., 37, 164. 

Optional clause, withdrawals, 10; 
and declarations, 57, 68; juris- 
diction under, 66, 70, 74; and 
Art. 13 of Cov., 67; Protocol of 
Sig., 67; conditions, 68; ratifi- 
cations of, 69; and Geneva Pro- 
tocol, 72; French position, 73; 
British position, 74; and U. S., 
75- 

Outlawry of war, 190, 197; 
Borah Resolution, 76, 191; coali- 
tion agreement, 195. 


Palestine, 55, 277. 

Panama, 10, 244. 

Paraguay, 10. 

Pepper, Mr., 28; Res. 42, 122, 
231; adv. op., 122. 

Permanent Court of Arbitration, 
17, 18, 19, 41; and nom. of 
judges, 29, 34, 243; election of 
judges, 38; and Lodge Res., 40; 
and cases, 54; oblig. juris., 76; 
ex aequo et bono, 201; int. law, 
204; and submissions, 246. 

Persia, 10, 177. 

Peru, I0. 

Pessoa, M., 37, 164. 

Phillimore, Lord, 2, 38, 54. 

Poland, 8, 55; treaties, 84, 87, 
186, 221; disputes, 178, 263, 266, 
BHT igre: 

Policies of Court, 15, 63, IOI, 235, 
263. 

Politis, M., 72; cited, 214. 

Portugal, 8, 70. 

Procedure, 23, 24, 114, I17. 


352 


Protocols, to Statute, 6, 7, 8, 10, 
14, 66; to optional clause, 66; 
of “Geneva, //6):10/ 812; 7208), 
106, I10, I7I, 194, 219, 236, 237. 

Provisional Measures, 24, 27. 


Reparation Commission, 18, 81. 
Report, First Annual of Court, 22. 
Republican Party Platform, 231. 
Ricci-Busatti, M., 2. 

Root, Mr., Adv. Com. of Jurists, 
2, 3, 237; and nom. of judges, 30; 
and election of judges, 38; and 
access to Court, 54; and int. 
law, 203. 

Roumania, 8; disputes, 72, 80, 178, 
181; and minorities, 87, I17; 
Little Entente, 186; arb. treaties, 
221, 

Ruhr, 180. 

Rules of Court, 25, 46. 

Russia, 0,/553;0.71 5°) disputes; "477, 
178, 262. 


Saar Territory, 55, 83, 161. 

Saint Naoum, 49, 82, 109, 178, 181, 
268. 

Salvador, 10, 70. 

Sanctions, under Cov., 13, 14, 15, 
213, 216, 220; under labor prov., 
149, 223; military, 194, 238; 
economic, 149, 216; text of Art. 
16 of Cov., 217; under treaties, 
220; under regional pacts, 221; 
and non-mem. of League, 222, 
238; adv. op. 233; and U. S., 
238. 

Schiicking, 48, 277. 


Scott,)"Dr:, 2. 

Serb-Croate-Slovene Kingdom, dis- 
putes, 71, 177, 181, 182, 186; 
and minority tr., 87. 

Siam, 8. 


South Africa, 8. 
Spain, 8, and Riffs, 180. 


INDEX 


Summary Procedure, Chamber of, 
20, 48, 51, 61, 281. 

Swanson, Mr., 39, 43, 63, 123, 226, 
310. 

Sweden, 8, 70, 79, 108, 177. 

Switzerland, 8, 11, 70, 84. 

Syria, 55. 


Tariff,; 166, 167, °277. 

Thayer, Prof., cited, 140. 

Transit and Communications, 20, 
48, 157, 164. 

Treaties, of Versailles, 1, 2, 17, 
62,) 77) 81> (Part X11))) 20,459, 
78.80, 1573 ) GParta XL LL o 
50, 77, 146, 150; (Part VIII), 
83; (Int. Law) , 203; (sanctions), 
220, 223; of Trianon, 77, 80, 87, 
162, 186; of Mutual Assistance, 
9, 10, 82, 106, 194, 219, 236; 
of Locarno, 18, 81, 84, 176, 186, 
187, 221, 236, 238; of Lausanne, 
62, 87, 94, 96, 98; of St. Ger- 
maine: 1) Wer - 804 87.\ Oa ae 
Neuilly, 48, 77, 80, 87; Minority, 
55, 83, 87; Little Entente, 186, 
221; sanctions under, 215; see 
also jurisdiction. 

Tunis and Morocco Nat. Decrees, 
21, 47, 50; see also under advi- 
sory opinions. 

Turkey, 9; and legal counsellors, 
62, 96; op. clause, 71; minorities, 
87; Iraq, 178, 184, 274; exchg. 


of pops., 179, 270; Patriarch, 
179, 274. 
Union Juridique Internationale, 


204. 

United States, withdrawal, 10, 16, 
241, 243; amendments, 15, 245; 
gen. policies of Court, 16, Io1, 
241; Harding-Hughes proposals, 
16, 23, 28, 34, 39, 43, 75, 121, 
197, 228, 220, 241; org. of Court, 


INDEX 353 


28; Lodge Res., 28, 40, 122, 166, 
230, 243, 247; Pepper Res., 28, 
42, 122, 231; nom. of judges, 33; 
King Res., 39; Lenroot Res., 39; 
Swanson Res., 43, 63, 123, 220; 
Willis Res., 43; nat. judges, 50; 
access to Court, 55, 63; optional 
clause, 75; oblig. juris., 90; im- 
migration, 94, 123; debts, 94, 
123; mixed tribunals, 95; non- 
judicial duties, 98, I0I, 103, 245; 
and adv. op. under Cov., 122, 
124, 243; and adv. op. in U. S., 
126; and domestic questions, 166, 
175; and outlawry of war, 180, 
197, 248; and Supreme Court, 
192, 199; int. law, 211, 248; sanc- 
tions, 224, 225; sep. of Court 
from League, 233; interests of, 
102, 235; and Monroe Doctrine, 
242; disputes, 240. 


Vilna, see Lithuania. 


Wang, M., 37. 

War, and Court, 71; prevalence 
under Cov., 176; Polish-Russian, 
179, 190; Polish-Lithuanian, 
179; in Eastern Galicia, 179; 
Greco-Turkish, 179, 190; the 
Riffs, 180; authorization under 
Cov., 188; and U. S., 189; Italo- 
Greek crisis, 190; outlawry of, 
190, 197; Greco-Bulgarian, 190; 
Tr. of Mutual Asst., 194; coali- 
tion agreement, 195; see also 
sanctions. 

Washington, Mr., and adv. op., 
120. 

Weiss, M., 20, 37, 47. 

Willis, Mr., Res., 43, 226. 

Wilson, Mr., 226. 


“Wimbledon,” S. S., 47, 59, 78, 


Upper Silesia, 59, 62, 88, 177, 204. 203, 220 


Uruguay, 8, 70. 


Venezuela, 8. Yovanovitch, M., 37, 49. 


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